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TMI Blog2009 (4) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... vested by law on the respondents to levy service tax on a person who is resident in India but who receives services outside India – demand set aside. X X X X Extracts X X X X X X X X Extracts X X X X ..... od from 16.8.2002. Perusal of the above quoted Rule 2 (d) (iv) shows that by that provision a person liable for paying the service tax was defined to mean in relation to any taxable service provided by a person who is non-resident or is from outside India to a person receiving taxable service in India. Apart from the fact that this rule is contrary to the provisions of Section 68 and other provisions of the Act, under this provision the recipient of the service became liable for paying the service tax provided the service was received in India. The entire case of the Petitioners is in relation to the service received by the vessels and ships owned by the members of the Petitioner-association outside India. Therefore, it cannot be said that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as if he is the person liable for paying the service tax in relation to such service. The above provision authorises the Central Government to notify the taxable service, in relation to which the rules can be framed, in relation to such service. By the notification dated 31.12.2004, any taxable service provided by a person who is a non-resident or is from outside India is notified. If Rule 2 (d) (iv) is taken to be rule framed pursuant to this provision, then a person who receives taxable service in India from a person who is non-resident or is from outside India becomes taxable and not service rendered outside India by a person who is non-resident or is from outside India. Therefore, levy of service tax from the members of the Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le by the Government in relation to the Clearing Agents by making customers of the Clearing Agent liable for levy of the service tax. That question has been decided by the Supreme Court by its judgment in the case of Laghu Udyog Bharati (supra) and the Supreme Court has clearly laid down that the imposition of the service tax is on the persons rendering the services and by making a provision in the Rules, levy of tax cannot be shifted to the recipients of the services and the Rule framed which brought about this situation has been declared by the Supreme Court to be invalid. The law laid down by the Supreme Court in its judgment in Laghu Udyog (supra) is squarely applicable to Rule 2 (1) (d) (iv), which is relied on in this case. It appears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e recipient in India was liable to service tax from 01.01.2005 is not applicable to the present case for the reason that Aditya Cement received services in India from its service provider. Although, learned SDR raises a plea that the judgment of the Hon'ble Bombay High Court is not required to be followed as the issue to the relevant date has been referred to the larger Bench of the Tribunal in the case of Molex (India) Ltd. Vs. CCE (Appeals), Bangalore - 2008 (84) RLT 770 (CESTAT-LB) = 2008 (9) STR 369, we do not accede for this request for the reason that the issue in this case stands settled by the decision of the Bombay High Court cited supra and no contrary decision on identical facts has been brought to our notice. Hence following the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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