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TMI Blog2019 (2) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... surance Auxiliary Services, Re-insurance Premium, Life Insurance Services, Business Auxiliary Services and Management of Investment under ULIP Services. The appellant have also been availing cenvat credit on the input services for providing the aforesaid output services. During an audit conducted from 03.12.2009 to 08.12.2009 covering the period 2008 - 2009 Department noticed that the appellant has been receiving services under Business Auxiliary Services, Re-insurance Premium from foreign based service provider. Though, has paid the service tax thereon but the assessable value was noticed to have been higher. The Department therefore alleged short levy on the part of the appellant. Based upon the said observation, show cause notice No. 892 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore erroneous and confirmation of demand based thereupon may be set aside. Appeal is accordingly prayed to be allowed. 5. Ld. AR per contra, has justified the order submitting that the adjudicating authority below has taken into consideration the relevant provisions of the Finance Act and also of the Service Tax Rules. Even the relevant circular has been taken into consideration. He has confirmed the demand with a speaking order. Impressing upon that there is no infirmity in the impugned order, appeal is accordingly prayed to be rejected. 6. After hearing both the parties and on perusal of record, we observe that the Department has initiated the case against the appellant, the recipient from foreign based service provider, alleging th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him is otherwise than for the purpose of use in any business or commerce, the provisions of this sub-section shall not apply: Provided further that where the provider of the service has his business establishment both in that country and elsewhere, the country, where the establishment of the provider of service directly concerned with the provision of service is located, shall be treated as the country from which the service is provided or to be 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." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... & Business Auxiliary Services are taxable under sub-clause (zx) and (zzb) respectively of clause 105 of Section 65 of the Act are received by the appellant and that these services fall under the category 3rd to Section 66A, the appellant being the service recipient of those services and being based in India and is liable to pay the service tax. Once appellant is discharging the said liability he is entitled for the credit disallowing the same is therefore an error on the part o the adjudicating authority. 8. Now coming to the aspect of as to whether the value in balance sheet or the one in service tax return for the impugned period is to be taken for assessing liability. For the purpose, section 67 of the Act acquires relevance which desc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adjudicating authorities have been silent about the scrutinizing such records and giving such finding as may establish as to whether the amount has been on these expanse is actually taxable or not. Similarly, for the expanses on medical check-up performed outside India for the policy holders located outside India. It was for the adjudicating authorities below to verify as to whether those expanses have just been transferred as pure agent or not. Now coming to the amount of remittance as has been received by the appellant towards reinsurance premium, it is an admitted fact that the net figure of the premium received as shown in balance sheet is different from the figure of ST-3 return due suo moto adjustments of the amounts/ claims settled ..... X X X X Extracts X X X X X X X X Extracts X X X X
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