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2016 (8) TMI 797 - HC - Service TaxBusiness auxiliary services - reverse charge mechanism – sales promotion expenses pertained to business expenditure to promote its products by conducting the doctor meetings, scientific sessions with doctors, distributing physician samples, printing of literatures, printing of gimmicks, printing of visual aids, supporting hospitals and clinics to purchase medical instruments, field business meeting to discuss about market trends and strategies, sales target related incentives to field personnel etc. – failure to obtain registration and file ST-3 returns. Held that: - The service provider is not situated outside India - No case was set up by the department that in the present case, such reverse charge mechanism applies. - no reverse charge mechanism exists. Calling upon the service recipient to pay service tax in absence of reverse charge mechanism is an unsustainable premise. Providing taxable service by petitioner – receiving taxable service by petitioner under section 66A - absence of proposal in SCN – Held that: - Mere reference to the statements of the officers of the company which may have a hint of any such providing of service, would not enable the department to levy service tax without a show cause notice and adjudication on this aspect. Relegate the petitioner to appellate remedy – Held that: - Commissioner had no jurisdiction to levy tax in absence of any finding that the petitioner had provided a taxable service. When the issue rests only on admitted facts and when on the basis of such admitted facts, it is found that the Commissioner of Service Tax had no jurisdiction to levy service tax on the petitioner, relegating the petitioner to appellate remedy would be futile and would cause unnecessary hardship to the petitioner – impugned order set aside - petition allowed – decided in favor of petitioner.
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