9911796707
TMI Blog2012 (12) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... Order-in-Original No. 21/2010 dated 4-3-2010 of the 2nd respondent, on its merits. 2. Heard the learned Counsel for the petitioner and Mr. Sundareshwaran, the learned Central Government Senior Standing Counsel for the respondents. 3. The issue relates to non-payment of Service Tax on incentives received from another company, who had developed software and that software is used by the petitioner company in its business. The software developers have given certain incentives to the petitioner company, which according to the respondent Department is taxable under Service Tax. 4. In the present case, the order passed by the Commissioner of Service Tax was challenged before this Court in W.P. No. 28666 of 2001 and this Court di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sage of the software are providing service by promoting the business of M/s. Galileo India Pvt. Ltd. Hence, they are liable to pay Service Tax on the incentive received by them. I find from the records that the Department had not made any effort to prove that there is service provider/received relationship between the appellants and CRS developer. When such relationship is not there, there is no service involved between them. The incentive is given by the CRS developer to the appellants as a loyalty amount for using their software for booking tickets. The appellants are only using the software provided by M/s. Galileo India Pvt. Ltd., but by any stretch of imagination it cannot be concluded that the appellants are promoting the business of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity for the delay and the Court is inclined to accept the same and the apology. Accordingly, the impugned order is set aside and the writ petition is allowed directing the Commissioner, Central Excise (Appeals) the third respondent herein, to dispose of the appeal filed by the petitioner on merits, after considering the prima facie case as is prevalent at the time of disposal of the appeal. It is clarified that if the order of the Commissioner (Appeals) said to be in favour of the petitioner has been reversed or modified by higher forum then the same will be binding.
9. In the result, the writ petition is allowed as above. However, is no order as to costs. Consequently, connected miscellaneous petition is closed. X X X X Extracts X X X X X X X X Extracts X X X X
|
