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TMI Blog2024 (12) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... e is acknowledged by the adjudicating authority in the impugned order. Since the entire payment of Rs. Rs.3,39,72,906/- has already been paid, the same is appropriated against their liability under the category of 'Consulting Engineer's Service, Erection, Commissioning or Installation Service and GTA Service . Demand of service tax of Rs.24,38,975/- under the category of Business Auxiliary Services - HELD THAT:- It is observed that the Appellant has rendered service to M/s. Thales, which is having its establishment outside India. It is observed that the services rendered by them, namely, business auxiliary service, falls under Rule 3(1)(iii) of Export of Services Rules, 2005. As per the clarification issued by Board Circular 111/05/2009-ST dated 24.02.2009, the relevant factor that decides whether the service rendered is 'export of service' is the location of the service receiver and not the place of performance of the service. In this case, the training has been received abroad and hence the services rendered are received abroad. Thus, the services rendered fall within the ambit of 'export of service' and accordingly, it is held that no service tax is payab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no suppression of facts with intent to evade payment of Service Tax existing in this case - the penalty imposed on the Appellant under Section 78 of the Finance Act, 1994 is set aside. Penalties under Section 77(1)(a) and Section 77(2) of the Act are imposed for non-registration and non-filing of ST-3 returns - HELD THAT:- It is observed that these penalties have been rightly imposed and we have no reason to interfere with these penalties imposed. Accordingly, the same are upheld. Appeal disposed off. - HON BLE SHRI R. MURALIDHAR , MEMBER ( JUDICIAL ) And HON BLE SHRI K. ANPAZHAKAN , MEMBER ( TECHNICAL ) Shri S. P. Majumdar , Advocate for the Appellant Shri Prasenjit Das , Authorized Representative for the Respondent ORDER ORDER : [ PER SHRI K. ANPAZHAKAN ] M/s. Eldyne Electro Systems Private Limited, Kolkata (hereinafter referred to as Appellant ) are engaged in erection, commissioning and installation service, maintenance and repair service, transportation of goods by road service, business auxiliary service, consulting engineer s service and commercial training or coaching service and registered with Service Tax Department. 2. A Show Cause Notice dated 17.12.2012 was issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax confirmed was imposed under Section 78 of the Finance Act, 1994, besides imposition of penalties under Section 77(1)(a) and Section 77(2) of the Act. The amount of Rs.3,05,85,082/- [Rs.3,05,00,000/- + Rs.25,793/- + Rs.59,289/-] paid by the Appellant was appropriated in the impugned order. 4. Aggrieved against the confirmation of demands of service tax along with interest and imposition of penalties, the Appellant has filed this appeal. 5. During the course of hearing, the Appellant submitted that they are not contesting the demands of Service Tax confirmed in the impugned order under the category of 'Consulting Engineer's Service', Erection, Commissioning or Installation Service and GTA Service and contesting the demand of service tax under the category of 'Business Auxiliary Service' and 'Commercial Training or Coaching Services'. They are also contesting the demand of interest and imposition of penalties in the impugned order. 5.1 Regarding the demand of Rs.3,38,87,724/- under Consulting Engineer s Service , the Appellant submitted that initially, they were not aware of their liability for payment of Service Tax under reverse charge basis; on bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand has been raised on the basis of the information available in their Balance Sheet and Profit and Loss Account. In such circumstances, they contend that the extended period of limitation not invokable. In support of this contention, the appellant relied upon the following decisions. i. Commissioner of Service Tax, New Delhi Vs Kamal Lalwani [2017(49) STR 552 (Tri.-Del.)] ii. Pappu Crane Services Vs Commissioner of C.Ex and Service Tax, [Final Order No. 71246/2019, dated 02.07.2019] iii. Suraj Impex India Pvt Ltd. v. Commissioner of C.Ex. [2016-TIOL-3331-CESTAT-Del] 5.6. Regarding the interest liability, the Appellant contends that they are not liable to pay service tax for the extended period of limitation; however, they have paid service tax as soon as the liability was pointed out to them. It is contended that just because they paid the service tax including the extended period of limitation, the interest also cannot be demanded for the service tax voluntarily paid by them for the extended period, which is otherwise not payable. Thus, the appellant submits that no interest payable by them. In support of this contention they relied upon the decision in the case of Bharat Rol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Service' and 'Commercial Training or Coaching Services'. They are also requesting for waiver of interest and penalty imposed under Section 78 of the Finance Act, 1994 in the impugned order. However, from the impugned order, we observe that the adjudicating authority has appropriated only Rs.3,05,00,000/-. The Appellant submitted that initially, they have paid Rs. 3,05,00,000/- and balance Rs. 33,87,824/- was paid subsequently in instalments. Thus, they requested for the appropriation of the remaining amount of service tax paid. In this regard, we observe that the Ld. Adjudicating authority has recorded in para 3.2.2 of the impugned order, wherein he observed that initially the appellant has paid Rs.3,05,00,000/- and subsequently they have paid Rs.33,87,824/- after issue of the Notice. Thus we observe that the entire payment amounting to Rs.3,39,72,906/-stands paid and the same is acknowledged by the adjudicating authority in the impugned order. Since the entire payment of Rs. Rs.3,39,72,906/- has already been paid, the same is appropriated against their liability under the category of 'Consulting Engineer's Service, Erection, Commissioning or Installation Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een held by this Tribunal decision in the case of Bharat Roll Industries Pvt. Ltd. v. Commissioner of Central Excise [2024-TIOL-411-CESTAT-KOL] wherein waiver of interest has been granted under similar facts and circumstances. The relevant part of the said decision is reproduced below: 5. We find that it is correct that whatever duty was paid by Unit-II is entitled as CENVAT Credit by Unit- I of the appellant themselves. In these circumstances, it is a situation of revenue neutrality. Therefore, as held by the Hon'ble Apex Court in M/s. Nirlon Ltd. (supra), we hold that the extended period of limitation is not invokable. Consequently, the demand of interest and penalty against the appellant are not sustainable. We find that it is correct that whatever duty was paid by Unit-II is entitled as CENVAT Credit by Unit- I of the Appellant themselves. In these circumstances, it is a situation of revenue neutrality. Therefore, as held by the Hon'ble Apex Court in M/s. Nirlon Ltd. v. Commissioner of Central Excise, Mumbai [2015 (320) E.L.T. 22 (S.C.)], we hold that the extended period of limitation is not invokable. Consequently, the demand of interest and penalty against the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that penalties under Section 77(1)(a) and Section 77(2) of the Act are imposed for non-registration and non-filing of ST-3 returns. We observe that these penalties have been rightly imposed and we have no reason to interfere with these penalties imposed. Accordingly, the same are upheld. 12. Consequently, we pass the following order: - (i) We uphold the demand of Service Tax amounting to Rs.3,39,72,906/- [Rs.3,38,87,824/- + Rs/25,793/- + Rs.59,289/] in respect of the services namely, 'Consulting Engineer's Service', Erection, Commissioning or Installation Service and GTA Service respectively. Since the appellant has already paid the entire amount of Rs. Rs.3,39,72,906/-, the same is appropriated against their liability under the category of 'Consulting Engineer's Service, Erection, Commissioning or Installation Service and GTA Service . (ii) We set aside the demand of service tax of Rs.24,38,975/- under the category of 'Business Auxiliary Services. (iii) We set aside the demand of service tax of Rs.4,23,586/- under the category of 'Commercial Training or Coaching Services'. (iv) We set aside the demand of interest for the extended period of limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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