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TMI Blog2024 (8) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... ofit Loss account. The impugned order has also relied on the decision of the Tribunal in KANPUR SECURITY SERVICES VERSUS COMMISSIONER OF C. EX., KANPUR [ 2008 (2) TMI 78 - CESTAT, NEW DELHI] , wherein it was held that service tax is leviable only on the amount received by service provider and not on amount still due from parties. In the instant case, the adjudicating authority has relied on a CA certificate submitted by the appellant which carries a date different from what has been indicated by the department in their review order or what has been submitted by the ld. AR. Further, once the CA certificate has been submitted by the appellant, the onus shifts on the department to negate the certificate to substantiate their allegation. Thus, unless evidence to the contrary is submitted by the department to disregard the CA Certificate, there are no infirmity with the findings in this regard in the impugned order. In the instant case, it is on record that the appellant had submitted the required details, but the demand notice had estimated the turnover to be 150% more as compared to the previous year s turnover. This estimated inflated demand has been rightly rejected by the adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged that the respondent did not discharge service tax on foreign currency expenses under the head 'selling commission' which appeared to be taxable under Business Auxiliary Services and they were liable to pay service tax amounting to Rs. 2,69,52,476/- for import of the said service under reverse charge mechanism.). Accordingly, a show cause notice dated 23.04.2013 was issued to the Respondent demanding service tax amounting to Rs. 22,13,64,995/- (incl. of cess.) under section 73(1) of the Act along with interest under section 75 of the Act and imposition of penalty under section 76, 77 and 78 of the Act was also proposed in the SCN. The SCN dated 22.05.2014 for the period 2012-13 was also issued to the Respondent by invoking the provisions of Best Judgement Assessment as provided under section 72 of the Act and service tax amounting to Rs. 22,47,16,258/- (incl. cess.) was demanded under section 73(1) of the Act along with interest and also proposed imposition of penalty under section 76, 77(1) and 78 of the Act. Vide the impugned order, the adjudicating authority dropped the demand on Works Contract Service and less penalty. Being aggrieved, the Department have filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent submitted that the services received from M/s Parah International are not in the nature of BAS. One of the essential ingredients of BAS is that the services must be provided on behalf of the recipient. In the present case, M/s Parah International has neither provided services on behalf of the recipient nor is representing the recipient to prospective customers. The services provided by M/s Parah International were on principal-to-principal basis, wherein M/s Parah International generates leads and these leads are followed up by the respondent who approach the prospective clients on their own. In other words, Parah International provides market research and consultancy services and not BAS. As the services received by the respondent are not classifiable under BAS, the receipt of the same cannot be said to be import of services as the same are covered under clause(iii)(c) of Rule 3 of Taxation of services (Provided from outside India and received in India) Rules, 2006. The Ld. Counsel further submitted that the respondent entered into an agreement with M/s Fujairah Cement Company, UAE to set up a power station plant in UAE. Further, the respondent also entered into another agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in revenue neutral situations, no mala fide intention can be attributed to the Appellant to invoke longer period of limitation. Reliance was placed on the following judicial precedents:- Jet Airways(1) Ltd Vs. CST, Mumbai dated 29.07.2016 cited as 2016 (44) STR 465(Tri-Mumbai) wherein the Hon ble Tribunal held as under. The aforesaid decision has been affirmed by the Hon ble Apex Court(Jet Airways India) Ltd. V. Commissioner cited as 2017(7) G.S.T.L. J35 (S.C.). M/s Indus Valley Partners (India) Pvt. Ltd. Versus Commissioner of Central Goods and Services Tax, Noida dated 17.01.2024 cited as 2024 (1) TMI 886-CESTAT Allahabad. NCR Corporation India Pvt. Ltd. Versus COMMR. OF C.T., Bangalore North dated 19.04.2021 cited as 2021 (55) G.S.T.L. 6(Tri.-Bang.) 4.2 The ld. Counsel submitted that the respondent is registered with the Service Tax Department since 19.01.2006 vide STC No.AAACT0121CST002. In the present case the alleged non-payment of Service tax is not with an intent to evade the payment of service tax rather it was due to bona-fide belief of the Appellant that the amount paid by it in convertible foreign exchange to the foreign company in respect of procurement of orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partmental appeal. In this context, we note that the Supreme Court has observed that the cross objections have all the trappings of a regular appeal and must be considered in full by the court adjudicating upon the same. However, in the instant case, we note that as no Cross Objections have been filed by the respondent, we are unable to consider his arguments in this regard. Consequently, we will only consider the grounds in the instant departmental appeal only. The issues before us are as follows: (i) Whether the Adjudicating authority had erred in dropping the demand amounting to Rs. 18,95,70,056/- for the period 2007-08 to 2011-12 Rs. 22,47,16,252/- for the period 2012-13 on account of short payment of service tax on Works Contract Service? (ii) Whether the Adjudicating authority had erred in not imposing commensurate penalty? 6.1 In respect of the first issue, we note that the demand for the period 2007-08 to 2011-12 was based on scrutiny of records submitted by the appellant in response to the letters and summons issued by the department. In the impugned order, we find that the adjudicating authority has observed that the amount recorded in the appellant s records are on accru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te, copies of their balance sheet for the relevant period as well as supporting evidences from some of the buyers, from which it is evident that they have not passed on the duty to the buyers of the goods. We further find that the Court Below has erred in ignoring the cogent evidences led before it. We also find that the Court below has erred by observing that the appellant has not shown the refund receivable in their balance sheet on the Asset side. 22 . Accordingly, we allow this appeal and set aside the impugned order. The appellant is entitled to consequential benefits including the grant of refund with interest. Accordingly, the respondent authority is directed to grant refund within a period of 45 days from the date of receipt of the copy of this order along with interest as per rules. 6.1.1 Similarly, in the case of M/s I.O.C. LTD. vs. COMMISSIONER OF CENTRAL EXCISE, MEERUT [2016 (335) E.L.T. 313 (Tri. - All.)], the Tribunal held as follows: - 6 . So far as applicability of unjust enrichment, as mentioned in Para 4(ii) above is concerned, it is the case of the appellant that excess duty paid has not been recovered from the dealers. Appellant has supported their claim on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee and that they had been reversed in their books of account. In other words, the transactions became unfructified sales. It appears that for proving bona fides, the documents regarding reversal of export sales were produced before the assessing authority. The assessing authority has rejected this stand of the petitioner by stating that the relevant documents have not been submitted. 15. I cannot appreciate this reason adduced by the assessing authority. When the petitioners deny the sales in question, they cannot do anything more. If the assessing authority is of the view that this is a false statement, the onus is on the authority. The petitioner cannot be expected to prove the negative. Therefore, on both the issues, I find in favour of the petitioner. The orders impugned in this writ petition stand set aside to that extent. The writ petition stands allowed accordingly. It is for the respondents to issue a revised order. No costs. Consequently, connected miscellaneous petition is closed. 6.2.1 Consequently, we hold that unless evidence to the contrary is submitted by the department to disregard the CA Certificate, we find no infirmity with the findings in this regar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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