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TMI Blog2014 (5) TMI 1070X X X X Extracts X X X X X X X X Extracts X X X X ..... nd is barred by limitation, necessary evidences adduced before the authorities have to be scrutinized, which would be done at the time of disposal of the appeal. - 25% of demand ordered to be deposited - Partial Stay granted. - ST/18/2012 - Stay Order No. S-75525/KOL/2014 - Dated:- 21-5-2014 - Dr. D.M. Misra, Member (J) and Dr. I.P. Lal, Member (T) Shri Jeetu Gupta, C.A., for the Appellant. Shri A.K. Biswas, Supdt. (AR), for the Respondent. ORDER [Order per : D.M. Misra, Member (J)]. - This is an application seeking waiver of pre-deposit of duty of ₹ 10,92,313/- and penalty of ₹ 21,84,626/-. 2. The ld. advocate for the applicant submits that during the period from 1-4-2004 to 31-3-2009, they have rende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment, therefore, invoking of larger period of limitation, is unsustainable in law. 3. Per contra, the learned AR for the Revenue reiterating the finding of the ld. Commissioner (Appeals) submitted that the appellant has though rendered the services in Nepal, but since the value for rendering services were received in Indian currency, and not in convertible foreign exchange, therefore, they are liable to pay service tax, as the conditions stipulated under Rule 3(2)(b) of the Export of Services Rules, 2005 has not been satisfied in the present case. He has submitted that the judgment of the Tribunal in the case of M/s. Cox and Kings India Ltd. v. Commr. of Service Tax, New Delhi (Supra), is not applicable to the facts of the present cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facie, the question is whether the services rendered by the applicant satisfy, the conditions laid down under clauses (a) (b) of the proviso to the said sub-rule or otherwise. Further, we find that even though clause (a) has undergone some changes from time to time, but Cl. (b) continues to remain the same, that is, the payment must have been received in convertible foreign exchange. The applicant claimed that they had received the value of services in Nepali s currency, which while receiving through their Bank, had been converted into Indian currency and paid to them. Prima facie, we do not find merit in the contention of the applicant, for the reason that the invoices were raised on the service receiver in Indian rupees, and also the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation raised by the applicant is a mixed question of facts and law and to arrive at the conclusion that the demand is barred by limitation, necessary evidences adduced before the authorities have to be scrutinized, which would be done at the time of disposal of the appeal. No financial hardship has been pleaded. In the result, the applicants could not be able to make out a prima facie case for total waiver of pre-deposit, accordingly, we direct the applicant to deposit 25% of the service tax demand within a period of eight weeks from the date of communication of this Order and report compliance on 28-7-2014. On deposit of the said amount, the balance dues adjudged would stand waived and its recovery stayed during pendency of the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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