9911796707
TMI Blog2023 (1) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... of audit, no audit note was issued. Subsequently, audit was again done in the year 2019. Thereafter, Audit Report, IAR- 106/2018-2019 dated 19.08.2019 was issued for short payment/nonpayment of service tax under RCM. After issue of the Audit Report, there was correspondence between the assessee and the Revenue and several audit paras were dropped. However, on fourth issue, the matter could not be settled and thereafter, show cause notice dated 17.10.2019 was issued relating to the period April, 2014-15 to June, 2017 demanding service tax and proposing penalty as follows:- Particulars Tax Involved Amount (Rs.) Short payment of tax under RCM for payment through Debit/Credit Card of the Director for import of services (in foreign currency) from outside India. 12,27,087/- Short payment of tax due to wrong availment of abatement under NN 26/2012-ST dated 20.06.2012 on Tour Operator Services without fulfilling conditions. 72,99,444/- Wrong availment and utilization of CENVAT Credit on basis of invoices which are neither for registered address nor in name of the appellant and issued prior to stipulated period of six months. 9,34,836/- Short payment of tax due to difference betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the audit report was not issued for the Audit done during Feb-March, 2016. 7. As regards the demand of Rs.72,99,444/- allegedly raised for short payment of tax, due to wrong availment of abatement for Tour Operator Service, under Notification No.26/2012-ST, the ld. Commissioner (Appeals) have held that as the appellant have reversed the proportionate cenvat credit attributable to Tour Operator Service, amounting to Rs.6,33,791/-, out of total separate credit amount of Rs.9,34,836/-, accordingly, amounts to having not taken cenvat credit at all, relying on the ruling of this Tribunal in Ambassador Holidays Private Limited - 2019 (21) GSTL 460 and Sanjay Engineering Industries - 2016 (43) STR 354 (Raj.). Thus, this demand was set aside. 8. Further Revenue is not in appeal against this deletion/setting aside of this demand and accordingly, the same attained finality. 9. The next issue is regarding dispute of cenvat credit of Rs.9,34,836/-. Ld. Counsel urges that out of this amount, they have already paid back amount of Rs.6,33,791/- and hence, the balance dispute is for Rs.3,01,045/. The Court below has disallowed this amount on the ground, relying on the allegations made in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceiver(s) of the appellant. Bangalore office does not have any independent existence. Further, it is explained that payment has been made to the suppliers or vendors for providing services. Further, the bill was raised by the Overseas Service providers in the name of the Director, to facilitate the payment. However, there is no dispute with regard to the receipt of the input services by the appellant company. Further, there is no dispute that it is the appellant company, which have incurred the amounts for such services by reimbursing the payment made by the Director. It is also pointed out that one of the service providers is 'Pay U Biz', which provides service for the 'payment gateway' of the appellant, by which the appellant gets the payments from its customers or service receivers, through online mode, wherein the service provider (Pay U Biz) receives the payment on behalf of the appellant from their customers and remits the amount to the appellant. Further, invoices for Manpower supply, Recruitment services have been provided by Applied Life Pvt. Ltd. and the invoices are in the name of the appellant company only. Thus, there is no anomaly or material defect in taking of cenva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justment of tax is concerned, I modify the order to the extent that the appellant shall be entitled for cenvat credit as well as cash. The Adjudicating Authority shall verify the payments made through invoices by the appellant and allow the credit after verifying the same. 19. So far disallowance of Rs.12,27,087/- is concerned, ld. Commissioner (Appeals) have observed that the appellant have contested the tax amount of Rs.4,85,769/- on the ground that this amount relates to import of package software, which are goods, as defined and has been explained by the Revenue. Further, urges that the Commissioner (Appeals) disallowed this amount without recording any independent finding relying on the order-in-original. 20. He further points out that in para D-5 of the order-in-original, the details are recorded as follows:- Sl. No. Name of Vendor Description of Work Done Value (in Rs.) Estimated Service Tax (in Rs.) 1. ENVATOMARKET Software from where one can buy website themes and designs.What we buy, it is delivered in a zip file that gets downloaded on our system. 14,334 2,150 2. 500PX.COM MARKET PLACE This is a platform from where we buy rights to Use Photos availabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.7,41,821/- is concerned, I find that the appellant have maintained proper books of accounts and transactions were duly reflected in books of accounts and proper vouchers were maintained. Further, situation is wholly Revenue neutral as the appellant was entitled to cenvat credit on the same. Further, admittedly, the appellant have discharged their service tax liability on the taxable services provided by them. Accordingly, the balance demand is also set aside on the ground of Revenue neutrality 26. As regards the ground of limitation is concerned, I find that the appellants have maintained proper records and earlier also, they were subjected to audit in the month of Feb. - March, 2016. In this view of the matter, I hold that the demand upto the period October, 2015 is time barred and extended period of limitation is not available. 27. So far the imposition of penalty under Section 78 and 78 A on the Director is concerned, I find that the show cause notice has been issued by way of interpretation and/or change of opinion. The appellant company was set up in the year 2010-2011 and have been availing similar credits and filing ST-3 Returns accordingly from year to year, and in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
