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TMI Blog2018 (1) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... - the SCN has simply taken the difference between ST-3 Return and balance sheet and prepared a table without offering any explanation or basis as to how the demand had arisen for different periods and services. Demands appears to have been calculated the service tax in the SCN without doing any investigation or analysis of relevant documents or co-relation with the refunds taken by the respondent. Admittedly, the respondent are eligible for refund of the service tax on quarterly basis and turnover is certified by statutory auditors as has observed by the Ld. Commissioner - demand set aside. Management Consultancy Service - other expenses - includibility - Held that: - no findings have been given in respect of dropping of demand of ₹ 13,81,818/-, which was raised as part of total demand in show cause notice dated 29.03.2011. In the absence of clear findings on other expenses, the matters required to be remanded back to the adjudicating authority for passing a fresh order, after re-examining the demand of other expenses and management consultancy raised in show cause notices dated 19.10.2011 and 17.11.2011 - matter on remand. Appeal allowed in part and part matter on rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. In respect of other two show cause notices, dated 29.03.2011 17.11.2011, the entire proceedings were dropped. Aggrieved from the order of adjudicating authority, the Revenue has filed this appeal. 3. The ld. AR relying on the grounds of appeal submits that reimbursement of the communication cost paid by the appellant to their parent company M/s CMG comes under the category of Business Auxiliary Services as the provision of Communication link-IPLC has been procured by the parent company for the Indian subsidiary. He argued that it was covered by clause (iv) of Business Auxiliary Service, hence, it should be classified under the Business Auxiliary Services and not under the Telecommunication Services, particularly, when the payment was made in convertible foreign exchange to M/s CMG on account of procurement of IPLC link for the appellant. Such procurement of services is covered under the clause (iv) of Business Auxiliary Service. Hence, the adjudicating authority has erred in arriving at the proposition that a service recipient cannot be a service provider. Since, the service provider is located outside India, the respondents are liable to discharge the service tax und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 011 (21) STR 589 (Tri. Del.) (iv) Commissioner, CE Ludhiana Vs. Mayfair Resorts- 2011 (22) STR 263 (P H) 5. He also stated that they had no incentive to suppress as they were entitled to claim refund on services being an exporter. He also argued that the balance sheet had been provided by the respondent only and hence suppression cannot be alleged. On the third issue of management expenses, he stated that the respondent had paid the amount of 12,94,359.00/- out of 14,50,679/- before the adjudication along with interest leaving a balance of ₹ 1,56,320/- on which penalty was levied. 6. Heard the parties and examined the records. 7. We find that there are three issues which are arising from the impugned order. First issue relates to the taxability of IPLC charges and whether such service would fall under Business Auxiliary Service or Telecommunication Service. On the question of whether the services provided by M/s CMG for procuring IPLC service and obtaining dedicated link, which has been established between the appellant and M/s CMG, would be covered under the Business Auxiliary Services, we find that the Ld. Commissioner has correctly dealt with these issues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a levy by the legislature cannot be subjected to tax by the department under another entry. 8. In this regard, we also find that the issue of taxability of IPLC service has been already decided by this Tribunal in the case of Infosys Ltd. (Supra) , wherein this Tribunal came to the following conclusion: 6.2 Learned counsel relied upon the Boards Circular issued in F. No.137/21/2011-S.T. dated 19.12.2011 to submit that the Government has accepted the position that service tax is not payable by the service provider in respect of such service. He also submitted that the very same issue had come up for consideration of the Commissioner in the case of their own sister company, M/s Infosys BPO Ltd. and the Commissioner in Order-in-Appeal No. 122/20012 dated 12.10.2012 had dropped the demand with the following observations : In view of the Boards clarification, I hold that the demand of service tax amounting to ₹ 1,72,49,472/- made in the show-cause notice on the expenditure incurred in foreign currency by the assessee during the period from 1.10.2010 to 30.9.2011 towards payment for service (International Private Leased Circuit) provided my M/s ATMT, BT, MCI, etc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced below: 18. I find that the turnover in balance sheet is on accrual basis and whereas the turnover in ST-3 is on cash basis, therefore, there is bound to be difference in the turnover between Balance Sheet and the ST-3. Further, as stated by the Learned Counsel that at the time of finalizing accounts, normally adjustment entries with regard to foreign exchange fluctuations, cost escalations etc are passed and the same are declared in the subsequent return for the simple reason that the returns cannot be revised after 90 days. I find such explanations have been considered and accepted by the Division Office while granting the refunds under Notification 5/2006 dated 14th March, 2006 and the said refund orders have attained finality because neither the department has reviewed the refund orders and filed any appeal challenging refund nor the board has reviewed. Moreover, the turnover in ST-3 has been certified by the Statutory Auditors as provided under the Circular No. 120 Dt. 19.10.2010 issued by the Board. Further, In addition to the above findings the Revenue declared in the balance sheet is for the purposes of income tax and the same cannot be considered as revenue ..... 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