9911796707
TMI Blog2015 (5) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... th interest and penalties. The entire impugned demand comprises seven components which are summarised below: S.No . Activities on which the demand has been confirmed Taxable service under which demand has been confirmed Amount of tax demand confirmed (in Rs .) 1. Consideration received under the facility purchase agreement Section 65(105)(zzzq) Support services of business or commerce 3,17,36,027/- 2008-2009 2. Amount received towards refundable loan Section 65 (105)(zzzq) support services of business or commerce 65,36,718/- 2007-2010 3. Clinical Trials undertaken Section 65(105) (zzh) Technical testing & analysis 50,28,051/- April 2005 to April 2006 4. Alleged short payment of service tax in comparison to the annual accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t received towards refundable loan which again is treated to be proceeds for providing support service of business or commerce. Notwithstanding ld. DR's support to the finding of the adjudicating authority, it is evident from the agreement dated 23.3.2009 that the appellants got interest free advance which was repayable. Indeed there is evidence of re-payment in the form of letters dated March to Feb 23.5.2013 showing repayment of two instalments . In any case unless it is established that the interest free loan was camouflaging the consideration received for providing service, the amount of loan cannot be taken to be the payment for providing taxable service and thus prima facie the confirmation of this component of demand seems to lac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cating authority, prima facie, has not dealt with the appellants contention and has confirmed the impugned demand on the ground that they had not disclosed as to when the said amount was received by them and when they paid service tax on that amount. While so observing, the adjudicating authority seems to have lost sight of the fact that the onus is primarily on the Revenue to establish short payment. Thus, sufficient ground exists to waive pre- deposit of this component of demand also. 6. Regarding the fifth component of the impugned demand relating to excess utilisation of Cenvat credit, the appellants stated there is no question of excess utilisation inasmuch as sufficient Cenvat credit was available in their Cenvat credit account and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
