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TMI Blog2021 (9) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... /s Stephenson Harwood Office No. 2 and, therefore, the service tax payment pertains to this very transaction - Appellant has paid the service tax, though on a higher value than proposed by the Department. The show cause notice for the demand, in view of the provisions of section 73(3) of the Finance Act, should not have been issued. Demand of service tax of ₹ 1,57,748/- on foreign remittance of ₹ 15,31,530/- - HELD THAT:- It has been pointed out by the Appellant that since the records were quite old, the challans evidencing such payment were not available at the end of the Appellant, but as the demand of service tax of ₹ 82651 with respect to Serial No. 139 for the year 2010-2011 was dropped by the Adjudicating Authority the demand of ₹ 1,57,748/- for the year 2009-2010 was also liable to be dropped on similar grounds - if the demand has been dropped for the year 2010-2011, there is no reason why it should not be dropped for the year 2009-2010. Thus, the demand of service tax of ₹ 2,74,905/- on foreign remittance of ₹ 26,68,980 cannot be sustained. Demand of service tax - Certain entries could not be traced at the Appellant's end - n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed. - ST/53101 & 53125 of 2015 - FINAL ORDER NO. 51819-51820/2021 - Dated:- 17-9-2021 - MR. DILIP GUPTA, PRESIDENT AND MR. P. ANJANI KUMAR MEMBER (TECHNICAL) Shri B.L. Narasimhan, Advocate Shri Tarun Trehan, CA for the Appellant Dr. Radhe Tallo, Authorized Representative of the Department ORDER M/s Hindustan Zinc Ltd [the Appellant ] has filed these two appeals to assail the order dated 26.05.2015 passed by the Commissioner, Central Excise [the Commissioner], by which the show cause notice dated 16.08.2013 issued to the Udaipur unit of the Appellant and the show cause notice dated 20.06.2013 issued to the Chittorgarh unit of the Appellant have been adjudicated upon by a common order confirming part of the demand proposed in the two show cause notices with interest and penalties. 2. The details of the period, the demand proposed, and the demand confirmed are as follows:- Unit Show Cause Notice Period Proposed demand (in Rs.) Confirmed demand (in Rs.) Udaipur 16.08.13 2009-10 7,01,662/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing payment of service tax on services received in India. The impugned proceedings are vague as the department has failed in discharging its burden of proving taxability. There is no allegation in show cause notice, or findings in Impugned Order, as to how charging provisions are attracted. The show cause notice/Impugned Order do not even specify the category of service, under which the alleged demand has been proposed/ confirmed against the Appellant. 3 Demand of Service Tax in respect of `Marketing Research and Exploration' services rendered by Mr. Johan Carlier to the Appellant ₹ 1 ,83,733/- Non-production of documentary evidence (i.e. Agreements invoices), to support the fact that the impugned services of 'Marketing Research and Exploration' are not exigible to service tax, as being provided outside India in terms of Rule 3(ii) of Import Rules. Work of Marketing Research and Exploration was executed entirely outside India, thus, not subject to service tax in terms of Rule 3(ii) of Import Rules. 4 Certain entries could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010-2011 7. Service Tax in respect of foreign remittances, which has been duly discharged by the Appellant, but the same has not been accepted by the Adjudicating Authority ₹ 7,57,166/- Difference in amount of challan/(s) submitted i.e. Challans submitted towards payment of service tax of ₹ 8,93,484/- does not correlate with service tax liability of ₹ 7,57,166/- a) The Appellant has already paid service tax of ₹ 7,57,166/- towards the impugned services. b) The difference in challan amount is due to exchange rate difference and TDS payments. 8. Certain entries could not be traced at the Appellant s end. ₹ 32,899/- Non-production of documentary evidence (challans etc.) indicating payment of service tax on impugned services. The impugned proceedings are vague as the department has failed in discharging its burden of proving taxability. There is no allegation in show cause notice, or findings in Impugned Order, as to how charging provisions are attracted. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omatic Grinding Technologies Ltd. v/s Commissioner of Central Excise Service Tax, Ghaziabad [2019 (8) TMI 320-CESTAT ALLAHABAD ]; d. N R Management Consultants India Pvt. Ltd. v/s Commissioner of Service Tax, New Delhi [2018-TIOL-813-CESTAT-DEL ]; e. M/s Balaji Contractor v/s Commissioner of Central Excise, Jaipur II [2017-TIOL-1071-CESTAT-DEL ]; and f. Hetero Labs Ltd. v/s CCT Hyderabad GST [2018-TIOL-2874-CESTAT-HYD ]; iv. The extended period of limitation could not have been invoked as the Appellant had not suppressed any facts from the Department. In fact, the Appellant was under a bonafide belief about non-taxability of the transactions and thus did not pay service tax. This apart, the issue of taxability of such services received from abroad under reverse charge mechanism was under litigation at various forums and was ultimately settled later. It cannot, therefore, be said that the Appellant suppressed any facts with malafide intention; and v. The Appellant had reasonable cause for not making payment of service tax and, therefore, penalties could not have been imposed upon the Appellant. 7. Dr. Radhe Tallo, learned Authorized Representative appearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttracted. In fact, neither the show cause notices nor the impugned order specify the category of service under which the demand has been confirmed against the Appellant. The demand has been proposed and confirmed merely because of difference between the figures in the balance sheet of the Appellant and the ST-3 Returns. 12. It is well settled that the show cause notice as also the order of the adjudicating authority should specify the taxable service. In this connection reference can be made to the following decisions. 13. In Shubham Chemicals, the Tribunal observed as follows:- 11. Neither the show cause notice dated 21-10-2011 nor the impugned adjudication order dated 18-1-2013 record any assertion/conclusion whatsoever as to which particular or specific taxable service the appellant had provided . In the absence of an allegation of having provided a specific taxable service in the show cause notice and in view of the failure in the adjudication order as well, neither the show cause notice nor the consequent adjudication order could be sustained. (emphasis supplied) 14. In Deltax Enterprises, the Tribunal observed as follows:- 4. In the absence of specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 76328 Challan no. 50119 dated 05.03.2011 66 Emperor Design Consultants Ltd. 1531530 157748 The entry is similar to S. No. 139 for the year 2010-11 which has been dropped by the Adjudicating Authority. Service Tax on the same lines is paid on this transaction also; however, the Challan evidencing payment is not being readily available. Total 2668980 274905 19. It would be seen from the aforesaid that for the demand of service tax of ₹ 1,17,157/- on foreign remittance of ₹ 11,37,450/-, the Appellant paid service tax of ₹ 1,76,328/- towards the services received from the service provider mentioned at Serial. No. 64. The service tax paid by the Appellant is more than the service tax pointed out by the Department for the reason that actual remittance is more on account of exchange rate difference and substantial TDS. It has also been pointed out by the Appellant that there are no other remittances of the service provider M/s Stephenson Ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 51 Aspermount UK Ltd. 1,32,822 13,681 Grand total 8,36,968 86,208 25. It has been pointed out that the Appellant repeatedly requested the Department to provide details of the bank reference number and details of foreign currency against each of the entry, but the Department did not provide the information and it is for this reason that while submitting the reply to the show cause notice, the Appellant made a specific request for providing the date of debit of amount towards such remittances in the bank account of the appellant from which the transactions could be linked, because according to the Appellant non-availability of any material with the Appellant indicated that these foreign remittances did not relate to the Appellant. 26. The order passed by the Principal Commissioner has confirmed the demand of service tax by simply observing that in respect of entry numbers 12, 22 and 51 of the annexure to the show cause notice, the Appellant could not produce any document which may indicate that service tax had been paid in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .. 487795 50243 54 .do .. 144346 14868 Total 1783810 183733 31. The contention of the Appellant is that even though the activity of market research services is not explicitly mentioned in the contract dated 13.02.2008 entered with the service provider but still the scope of the work, which is the crux of the contract, would clearly suggest that the contract is basically for the work of market research and exploration which is taxable under the category of market research services falling under section 65(105)(y) of the Finance Act. 32. Learned Counsel for the Appellant further contended that the other activities mentioned in the contract are only of supporting nature and since service tax is based on the actual nature of service and not because of what is described in the documents, the substance of the transaction would prevail over the form. The submission, therefore, is that the services are taxable under section 65(105)(y) of the Finance Act and but as they were provided outsid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OL-99-CESTAT-DEL ]. 38. In M/s Skipper Electricals India Ltd it was observed as under:- Admittedly, we find that the issue relating to service tax liability on the recipient of service was a subject matter of large number of litigations. The concept of reverse charge on import of service was new and was disputed. The legal position got clarified only with the decision of Hon'ble Bombay High Court in the case of Indian National Shipowners Association v/s Union of India [2009 (13) STR 235 (Bom.) ], In such situation, we find that there is no justification for invoking allegation of willful mis-statement, suppression of fact with intend to evade service tax etc. Accordingly, we hold that the demand is barred by limitation, as having been issued well beyond the normal period from the relevant date. Accordingly, the impugned order is set aside on the ground of limitation and the appeal is allowed. 39. In Kriti Nutrients Ltd., the Tribunal observed:- Otherwise also we note that the fact that the service tax on reverse charge was recently introduced and its scope was not clear and entertained various doubts, requiring issuance of various clarifications by the Board. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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