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TMI Blog2019 (5) TMI 1147X X X X Extracts X X X X X X X X Extracts X X X X ..... to the department. Liability of discharge of tax in the said case does not fall on the house owner as service provider ABMCPL, who collected the Service Tax, is duty bound to pay the same to the Government. In the instant case, there is no dispute concerning such payment being not paid to the Government by ABMCPL. Even in such a situation the liability is supposed to be fixed on the person who collected the same and it can never be fixed on the person from whom it is collected. When service tax was collected by service provider even on providing for residential accommodation which is admissibly not subjected to service tax, there is no point in denying benefits of availment of CENVAT credit to the appellant when legality of such coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t provided that the expenses incurred in relation to provision of services provided to be borne by the appellant. CERA audit raised objection to the service tax paid under separate invoice for the cost of the rent of the residence of Dr. Puri, which appellant explained to be accommodation charge of Dr. Puri and is admissible in view of pre 2011 amended definition of input service carrying activities related to business . Clarification was not acceptable to the respondent department for which it was subjected to show cause notice, matter was adjudicated, OIO confirmed duty liability for the period of dispute between April 2008 to March 2011 along with interest and equivalent amount of penalty, that found approval of the Commissioner (Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issible in view of Hon ble Apex court decision given in Maruti Suzuki Ltd. case report in [2009 (240) E.L.T. 641 (S.C.)] as well as Hon ble Bombay High Court decision given in Ultratech Cement Ltd. report in 2010(260) E.L.T. 369 (Bom.). Further submission of Learned Counsel for the appellant focuses on the findings of the Commissioner (Appeals) regarding existence of employee-employer relationship which was an altogether different ground not raised in the show cause notice nor agitated during the entire adjudication process for which he pressed to set aside the order passed by the Commissioner (appeals) denying admissibility of such CENVAT credit to the appellant. 4. In response to such submissions, Learned Authorised Rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exchange experience or skills. From the dictionary meaning of secondment, it cannot be said that there exist an employee-employer relationship between appellant and Dr. Puri. On the other hand, as found from the case record, services of Dr. Puri were made available to the appellant through its service provider ABMCPL and it recovered back all costs of Dr. Puri including salary, residential accommodation etc. Making available the services of Dr. Puri to the appellant was done by ABMCPL for which there can not be any doubt that it was not a service rendered by ABMCPL to the Appellant. As found from the order-in-original, denial of CENVAT credit on rent paid for residential accommodation was justified by the adjudicating authority on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 54 another tax invoice is enclosed which is purely salary component of Dr. Puri paid as seconded employee. It has indicated that the said salary was paid by the service provider who sought it s reimbursement from the appellant. In that tax invoice also, Service Tax component was met but it is not understood as to why collection of Service Tax from payment of salary not objected by respondent Department when the finding of Commissioner indicated it as an employee-employer relationship. Be that as it may, when service tax was collected by service provider even on providing for residential accommodation which is admissibly not subjected to service tax, there is no point in denying benefits of availment of CENVAT credit to the appellant when ..... X X X X Extracts X X X X X X X X Extracts X X X X
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