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TMI Blog2023 (7) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... hould also be applicable to it. In other words, upon fixing the responsibility for payment of service tax under reverse charge mechanism, no distinction can be placed between the service receiver and service provider for the purpose of Section 66 ibid. Therefore, the benefit of exemption Notification No. 17/2004-S.T., dated 10.9.2004 should also be available to the respondent. The issue before us in the present case has already been decided by the Co-ordinate Bench of the Tribunal in the case of M/S UNITED NEWS OF INDIA VERSUS C.S.T. NEW DELHI [ 2017 (3) TMI 17 - CESTAT NEW DELHI] . While interpreting the provisions of Section 66A ibid, it has been held that the benefit of the exemption should also be available to the recipient of service. The Hon ble High Court of Bombay, in the case of Indian National Shipowners Association [ 2008 (12) TMI 41 - BOMBAY HIGH COURT ], had held that the law laid down by the Hon ble Supreme Court in its judgement in LAGHU UDYOG BHARATI VERSUS UNION OF INDIA [ 1999 (7) TMI 1 - SUPREME COURT ] is squarely applicable to Rule 2(d)(iv), where by issue of notification dated 31.12.2004, any taxable service provided by a person who is a non-resident or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for royalty fee to their group company situated abroad for using their technology, Brand name etc. Further, respondent-assessee were found to be wrongly claiming exemption from payment of service tax under notification No.17/2004-ST dated 10.09.2004 without paying applicable service tax in respect of services received from the overseas service provider as per provisions of section 66A of the Finance Act, 1994. Accordingly show cause notice proceedings were initiated for recovery of service tax for the period 2007-2008 to 2011-2012 vide SCN No. 612/COMMR/ 2012-13 dated 19.10.2012 and for the period 01.04.2012 to 30.06.2012 vide SCN No. 124-ADDL/COMMR/2013-14 dated 11.11.2013 for Rs.92,21,884/- and Rs.13,62,519/- respectively. The original authority i.e., Additional Commissioner Service Tax-V, Mumbai had considered the written submission of the respondentassessee dated 20.02.2013 and after giving a personal hearing on 23.01.2017, had adjudicated the case confirming the service tax demands proposed in the show cause notices, besides imposition of penalties under section 76 and 78 of the Finance Act, 1994 vide Order-in-Original No. 65 66/ST-V/ADC/RS/Gillette/16-17 dated 30.01.2017. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be eligible for exemption Notification No. 17/2004-S.T., dated 10-9-2004, the Ld. Advocate has relied on the decision of Principal Bench of this Tribunal in the case of Commissioner of Central Excise Service Tax, Indore Vs. Cummins Technologies India Ltd., [2017 (7) G.S.T.L. 69 (Tri.-Del.)]. 5. Heard both the sides and perused the records. 6. Section 66 of the Finance Act, 1994 is the charging Section, which provides that in respect of taxable services mentioned therein, service tax shall be levied and collected in such manner as may be prescribed. Even for the import of service, the service tax has to be levied under Section 66 ibid. Since a deeming fiction was created in Rule 66A ibid, providing for payment of service tax by the recipient of service, such levy is in consonance with the charging provisions contained in Section 66 ibid. Thus, all the provisions of Chapter V of the Finance Act should also be applicable in respect of the service tax paid under Section 66A ibid. In the present case, since the appellant is liable to pay service tax as a recipient of the taxable service, the provision of Section 66 ibid should also be applicable to it. In other words, upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no rates are specified. Considering the legal position as stipulated clearly in Section 66A, we find that the legal fiction cannot be restricted only to collection of tax without applying any concession of the notification applicable thereto when the conditions of the said Notifications are fulfilled by the recipient of such service. Accordingly, the finding in the impugned order on this issue is not sustainable. The appeal is allowed on this issue. 8. We also notice that the Hon ble High Court of Bombay, in the case of Indian National Shipowners Association (supra), had held that the law laid down by the Hon ble Supreme Court in its judgement in Laghu Udyog Bharati Vs. Union of India, 1999 (112) ELT 365(S.C.) is squarely applicable to Rule 2(d)(iv), where by issue of notification dated 31.12.2004, any taxable service provided by a person who is a non-resident or is from outside India is notified for payment of service tax by a person who receives such taxable service in India. It was held by Hon ble High Court of Bombay that the Union of India got the legal authority to levy service tax on the recipients of the taxable service, first time when the Finance Act, 1994 was amend ..... X X X X Extracts X X X X X X X X Extracts X X X X
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