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TMI Blog2025 (3) TMI 745X X X X Extracts X X X X X X X X Extracts X X X X ..... exhibition outside India, from the whole of the service tax leviable thereon under Section 66 of the said Act. The impugned order has absolutely ignored the said decision. It has been the settled law that once an order has been passed allowing full relief to the assessee then it would not be proper for the department to take a different view on same issue provided there are no factual difference in two situations. The Hon'ble Apex Court in Vishnu Traders [1993 (11) TMI 230 - SUPREME COURT] has held 'In the matters of interlocutory orders, principle of binding precedents cannot be said to apply. However, the need for consistency of approach and uniformity in the exercise of judicial discretion respecting similar causes and the desirability to eliminate occasions for grievances of discriminatory treatment requires that all similar matters should receive similar treatment except when factual differences require a different treatment so that there is assurance of consistency, uniformity, predictability and certainty of judicial approach.' Coming to the submission vis-à-vis invalidity of the show cause notice demanding service tax under the omitted provisions, we obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the service tax itself is not payable the question of charging any interest under provision of Section 75 of the Act does not at all arises - it is observed that it has been defence of the appellant, since beginning, that the appellant has bona fide belief that it is not liable to pay service tax even under reverse charge on the payment made to the foreign service provider. The said bona fide belief is held to be a reasonable cause for not discharging depositing the service tax. Resultantly, the appellant is held entitled for the benefit of Section 80 of the Finance Act, 1994. Support drawn from the decision of this Tribunal in Mumbai Bench in the case of Commissioner of Service Tax, Mumbai Vs. Gama Consultancy Pvt. Ltd. [2006 (8) TMI 32 - CESTAT, MUMBAI]. Accordingly, the penalty is also wrongly imposed upon the appellant.
Conclusion - i) The place of provision rules dictate tax liability and that exemptions must be considered. ii) The show cause notice is invalid. iii) The appellant was not liable for service tax under RCM for exhibitions held abroad; exemptions applied. iv) Penalties and interest are unwarranted.
Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ect from 01.07.2012. In addition, the demand was proposed to be recovered vis-à-vis one service i.e. 'Business Exhibition Service'. However, the departmental authorities below have confirmed the demand under Banking and Financial Services. Hence even the order under challenge are not in tune with the basic show cause notice. 4.1 Learned counsel further submitted that the activity rendered by the appellant cannot be categorized as Banking and Financial Services. The appellant is receiving Business Exhibition Service from the foreign service providers (located outside the taxable territory). The taxability of such service has to be determined as per Rule 6 of Place of Provision Rules, 2012. According to which the place of provision shall be the place where event is held. In the present case, the exhibitions are held abroad i.e. outside the taxable territory. Accordingly, the place of provision will be the outside taxable territory due to which the appellant was under bona fide belief that it is not liable to pay any service tax. Otherwise, also the activities stands exempted in terms of Notification No. 25/2012 dated 20th June 2012. The demand is alleged to have wrongly been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the taxable territory by the appellant, is an afterthought. The act is rightly held to be an act of evading tax. Hence there is no infirmity when the interest have been imposed to be paid by the appellant and the penalties are also been imposed upon the appellant. Endorsing all the findings arrived at by Commissioner (Appeals) and denying any technical flaw in the show cause notice, as alleged by the appellant, the order under challenge is prayed to be upheld and the appeal is prayed to be allowed. 6. Having heard both the parties and perusing the entire record we observe that the impugned show cause notice is not the first in line as was served upon the appellant proposing the demand of service tax on the same allegations. Following have been the earlier Show Cause Notices [SCN]: (i) Show cause notice No. 01/2010/139 dated 13.04.2011 as issued by Commissioner, Central Excise Commissionerate, Jaipur for demanding service tax amount of Rs. 1,00,66,441/- for the period from 5.04.2006 to 31.12.2010. (ii) The show cause notice No. 76/2011/14723 dated 30.12.2011 amounting to Rs. 91,006/- for period from January 2011 to November 2011. (iii) Show cause notice No. 136/12/589 dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve;-vis invalidity of the show cause notice demanding service tax under the omitted provisions, we observe that the impugned show cause notice has been issued after the amendment in Finance Act with effect from 01.07.2012. The said amendment as per Notification No. 19/2012 dated 05.06.2012 has made the erstwhile section i.e. Section 66 of Finance Act 1994 as inoperative with effect from 01.07.2012 and Section 66B is incorporated as the new charging section of the service tax. The impugned show cause notice has demanded service tax under the erstwhile Section 66 of the Finance Act. The show cause notice is apparently invalid otherwise also as per newly incorporated Section 66B. The service tax with effect from 1.7.2012, is leviable on all services except those specified in the negative list of the services. Service tax shall be levied @ 12% on the: (i) Value of service other than specified in negative list; (ii) Provided or agreed to be provided by 1% to another. (iii) In the taxable territory apparently and admittedly the service provider is not in the taxable territory. It is the appellant's case which is not anywhere disputed nor denied, that the services were received for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating authorities have miserably ignored the exemption notifications. From Section 66B also there is the tax liability for all services being not covered in the negative list. However, section itself clarifies any service shall not be liable to tax if same falls under any of the exemption notification. As discussed above two exemption notifications are there to the rescue of the appellant. Hence we hold that the demand of service tax has wrongly been confirmed. 12. With respect to imposition of penalty and demand of interest, we hold that since the service tax itself is not payable the question of charging any interest under provision of Section 75 of the Act does not at all arises. We draw our support from the decision of Hon'ble Apex Court in the case of J.K. Synthetics Ltd. (supra) wherein it was held that no interest can be levied which is not admitted to tax. We hereby hold that the appellant is not liable to tax. We further observe that it has been defence of the appellant, since beginning, that the appellant has bona fide belief that it is not liable to pay service tax even under reverse charge on the payment made to the foreign service provider. The said bona fide belief i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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