TMI Blog2018 (6) TMI 1253X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent even for the disputed period. There is no infirmity in the order passed by the lower Authority in taking the view that the consolidated invoice shows the amount of consideration on which Service Tax has been paid - appeal dismissed - decided against Revenue. - ST/52179/2016-CU [DB] - FINAL ORDER NO. 52189/2018 - Dated:- 14-5-2018 - MR. V.PADMANABHAN, MEMBER (TECHNICAL) AND MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant : Mr.A.Jain, D.R. Present for the Respondent: Mr.Sanjay Khemani, CA. ORDER PER: RACHNA GUPTA The present appeal has been filed by the Department against the Order-in-Original dated 31st March, 2016 passed by the Commissioner of Central Excise, Jaipur vide which the proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransactions made by the particular Bank during the month. Such amount is shown under the Income and the Bank has paid Service Tax on the said amount. 3. After an audit team investigated about the said practice of the Bank for the period from 16.05.08 to 06.07.2009 a show cause notice dated 23.11.2012 was served upon the Bank calling upon to explain as to why the Service Tax amounting to ₹ 1,59,27,99,400/- should not be demanded and recovered from them under the proviso to Section 73 (1) of the Finance Act. Also as to why the interest on the aforesaid amount should not be demanded and recovered from them under Section 75 of the Act and penalty under Section 76 78 of the Act be not imposed upon them. 4. The Commissioner vide ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is made. It is alleged that the said consolidated invoice on monthly basis is made just to cover up the requirement of Finance Act regarding Service Tax, consequent upon the introduction of levy of the Service Tax on this service. Whereas the Bank is required to pay Service Tax in terms of provisions of Rule 6 (7B) of Service Tax Rules, 1994. Commissioner, therefore, has wrongly dropped proceedings initiated under the show cause notice dated 23.11.2012. Appeal is accordingly prayed to be allowed. 7. Ld. Advocate relied upon the order of Principal commissioners, Service Tax, Mumbai dated 4th September, 2015 to impress upon that order under challenge has been passed in direct synonymity to the said judgement that the consolidated invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oice. 9. To our opinion, mute point of consideration of the appeal is as to whether law permits different service tax liability of the banks in case of its transaction with a merchant or with another scheduled bank? 10. The legal provisions to help us to adjudicate the controversy are: Section 65 of Finance Act, 1994 defines various taxable services. Section 65 (12)(a) of the Act defines banking and other financial services as: The following services provided by a banking company or a financial institution including a non-banking financial company or any other body corporate [or commercial concern] namely:- (i) ..................... (ii) ..................... (iii) ..................... (iv) Secur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is an amount payable for that service. The word used herein is payable and not paid the intention of Legislature becomes clear that the consideration is something which one is liable to pay under the respective law or Rules and cannot be any un-proportionate and unreasonable amount charged in lieu of service provided or to be provided. Section 66 of the Finance Act, as was applicable at the time of impugned levy reads as:- Section 66. Charge of service tax. - There shall be levied a tax (hereinafter referred to as the service tax) at the rate of twelve per cent of the value of taxable services referred to in sub-clauses of clause (105) of section 65 (as mentioned in Section 66) and collected in such manner as may be prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder either of the said provisions. 11. The crux of the issue boils down to whether the Service Tax already paid by the bank, considering ₹ 100 per transaction for purchase/sale of foreign currency, is sufficient or the bank is required to discharge the same at the rate of 0.25 per cent of the gross amount of currency exchange. The Show Cause Notice alleges that the Service Tax is required to be paid in terms of Rule 6 (7B) of the Service Tax Rules, 1994, since no separate invoices have been issued for each transaction with other Schedule Banks. But is seen that the bank has raised the consolidated invoice covering all the transactions in a particular month with the Scheduled Bank. In such a consolidated invoice the consideration o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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