2009 (6) TMI 53

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..... as part-time adviser. Shri Gochi Mori was paid separately for the technical advice he rendered to the appellant-company. The impugned order affirmed demand of service tax of Rs.44,284.40 found due from the appellants on account of the services received, along with appropriate interest. The demand is in terms of rule 2(d)(1)(iv) of Service Tax Rules 1994 which empowers authorities to collect tax from Indian recipient of services received from a non-resident or from a person abroad .The order of the original authority also had imposed on the appellants a penalty of Rs.200/- per day under Section 76 of the Finance Act, 1994 (the Act). The demand of service tax and the penalty imposed are challenged on the basis that the impugned remuneration .....

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..... issue of Show Cause Notice, in the absence of allegations of fraud, suppression of facts or willful  mis-statement, the demand for the period beyond the normal period was barred by limitation. An amount of Rs.13,250/- alone could have been demanded validly pursuant to the Show Cause Notice issued on 28.3.2005. These points taken in the appeal are reiterated by the learned counsel during hearing. 2. The learned Jt. CDR fairly submits that the dispute has been decided in favour of the assessees vide a decision of the larger Bench of the Tribunal in Hindustan Zinc Ltd. Vs. Commissioner of Central Excise - 2008 (11) STR 338 (Tri. - LB) and the judgment of the Hon'ble High Court of Rajasthan in Union of India Vs. Aditya Cement - 2008 ( .....

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..... hat taxable service provided by a non-resident or from outside India who does not have any office in India, recipient of such service could not be held liable to service tax prior to 1.1.2005. In Aditya Cement case the Hon'ble High Court of Rajasthan held to the same effect. In the instant case the material period is prior to 1.1.2005. In view of the above judicial authorities the impugned demand and interest is not sustainable in law. Consequently the penalty also cannot be sustained. As the appeal succeeds on merits, the limitation question is not addressed as uncalled for. In the circumstances the impugned order is set aside and this appeal is allowed. (Dictated and pronounced in open court)      
Case laws, De .....

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