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2019 (5) TMI 914 - CESTAT MUMBAINon-payment of service tax - Commercial Training or Coaching Service - period from July 2003 to March 2009 - irregular CENVAT Credit availed - training on SAP/ERP module provided to graduates and professionals - exemption under N/N. 9/2003-ST dated 20th June 2003 and Notification No. 01/2004-ST dated 28.2.2004 - ground on which appellant seek exemption is that the software training provided by the appellant is covered under the scope of computer training institute or vocational training institute as the case may be. Exemption under N/N. 9/2003-ST dated 20th June 2003 and Notification No. 01/2004-ST dated 28.2.2004 - HELD THAT:- The exemption is not available to the appellant since neither the appellant’s institute can be designated as a computer institute rendering services imparting the knowledge in computer nor the courses offered by them are recognized by law prevailing in India. Also they would not qualify for exemption being an establishment authorized to issue a certificate recognized by law - the exemption is not available to the appellant for the period in dispute, that is, from 01/07/2003 to 10/09/2004. The appellant has discharged duty accepting the liability from 10/09/2004 to March 2009 with interest. Levy of service tax - amount paid for receiving ‘Management Consultancy Service’, and ‘Intellectual Property Rights Services’ from the overseas buyer under reverse charge mechanism - HELD THAT:- Disputing the said demand the appellant has submitted that even though the disputed amount has been reflected in the balance it but since the same were subsequently reversed being not paid hence no service tax liability could be fastened on them. Further, it is their contention that the demand on these services have been confirmed by the learned Commissioner on the basis of a report received from the service tax Commissionerate, however, copy of the same was not passed on them - therefore both the issues requires reconsideration by the Commissioner after passing on copy of the report collected from the service tax Commissionerate to the appellant. Management, Maintenance or Repair Service relating to software provided to their clients - levy of service tax - HELD THAT:- This aspect has not been examined by the adjudicating authority while confirming the demand on the said service. Therefore, to ascertain the liability post 01st June 2007 the matter is remanded to the adjudicating authority. CENVAT Credit - denied on the ground that the input service invoices were issued in the addresses of the appellant which was not registered with the department nor the appellant during the relevant period possessed centralized Registration as required under the Relevant Rules - HELD THAT:- Centralized accounting system has been operated from the Head Office at Mumbai where credit has been availed and utilized in discharging service tax liability from the Head Office - merely because the Mumbai office has not obtained centralized registration under the Relevant Rules, CENVAT credit availed on the service tax paid on input services which are undisputedly utilized by the appellant in providing the taxable output services cannot be disallowed - credit allowed. Penalty - HELD THAT:- Considering that the appellant had paid the entire amount of service tax with interest and does not dispute the liability for the period 10th September 2004 to March 2009, we are of the view that penalty under Section 76 for the said period on the liability relating to ‘Commercial Coaching or Training Service’ is justifiable. But, for the earlier period i.e. 01st July 2003 to 10th September 2004 since the appellant neither intimated the department about the rendering of service and availing exemption involving suppression the fact, accordingly, the demand is sustainable invoking extended period of limitation and penalty is imposable under Section 78 of the Finance Act, 1994. Appeal allowed in part and part matter on remand.
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