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TMI Blog2017 (12) TMI 1376X X X X Extracts X X X X X X X X Extracts X X X X ..... and established in a foreign country, this is a case covered u/s 66 A - the appellants are liable to pay service tax on reverse charge basis w.e.f. 18.04.2006. Time limitation - Held that: - the appellants having received service from foreign entity and having been aware of the provision of Section 66 A, should have examined the tax liability for due discharge, extended period rightly invoked. Penalty - Held that: - the provision of Section 80 can be invoked for waiver of penalty in the facts and circumstances of the case as the appellants have been pleading regarding the payment of consideration through Indian affiliates of the service provider situated in UK - penalties set aside. Appeal dismissed - decided against appellant. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Ld. Counsel contested the findings of the Original Authority and submitted on the following lines:- (A) The service providers in UK are having permanent establishment in India and as such, the liability of the appellant under Section 66 A will not arise. The agreements clearly show that the service provider in UK is having business in India with their permanent establishment and as such, Section 66 A is not attracted in this case. From the beginning, they have paid considerations for such services to affiliate of the service providers and as such, they are not to be held liable under Section 66 A. (B) The appellants discharged the considerations inclusive of service tax in terms of the agreement and as such, it is the foreign compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in India. No such inference can be made from the legal provision of the said section. 4. Regarding the extended period of demand and penalty, it is submitted that non-payment of service tax is brought to the notice only at the time of verification of the matter. Further, the assertion of the appellant that they have paid service tax to the provider of service along with consideration is not borne out by any documentary evidence in order to establish their bonafide. 5. We have heard both the sides and perused the appeal records. 6. The facts of the case are that the appellants were availing services of UK based service providers. This is not disputed. The only point of contest is that the service provider in UK is having a permanen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y from which the service is provided or to be provided. (2) Where a person is carrying on a business through a permanent establishment in India and through another permanent establishment in a country other than India, such permanent establishments shall be treated as separate persons for the purposes of this section. Explanation 1. - A person carrying on a business through a branch or agency in any country shall be treated as having a business establishment in that country. Explanation 2. - Usual place of residence, in relation to a body corporate, means the place where it is incorporated or otherwise legally constituted.] 7. On perusal of the above provisions, it is clear that the provider of service in a foreign country, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x elements. This is not evidenced by any documentary support placed before us. In any case, the appellants having received service from foreign entity and having been aware of the provision of Section 66 A, should have examined the tax liability for due discharge. As such, we find no reasons to interfere with the findings of the Original Authority with reference to limitation. However, we note that the provision of Section 80 can be invoked for waiver of penalty in the facts and circumstances of the case as the appellants have been pleading regarding the payment of consideration through Indian affiliates of the service provider situated in UK. 9. Considering the submission of the appellant, we hold that the penalties can be waived invoki ..... X X X X Extracts X X X X X X X X Extracts X X X X
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