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2023 (1) TMI 935 - AT - Service TaxShort payment/nonpayment of service tax under RCM - Tour Operator Services - Event Management Service - Business Auxiliary Service - Business Support Services - extended period of limitation - revenue neutrality - Imposition of penalty under Section 78 and 78 A on the Director - HELD THAT:- The appellant is entitled to and have rightly taken cenvat credit on the invoices addressed to the Bangalore office, and the invoices in the name of the Director, due to business exigency. Further, admittedly the appellant have received services in question and the payments have been made for such services by the appellant/assessee only. Further, the service is qualified as input service. Accordingly, the cenvat credit of Rs.3,01,045/- is allowed. Disallowance alleging short payment of service tax - short payment is due to non-recognition by Revenue of the ST-3 Return for the period April to September, 2015, which was filed manually - HELD THAT:- The ground has been allowed by way of remand for re-quantification of the demand after allowing the abatement. So far the adjustment of tax is concerned, the order is modified to the extent that the appellant shall be entitled for cenvat credit as well as cash. The Adjudicating Authority shall verify the payments made through invoices by the appellant and allow the credit after verifying the same. Disallowance of Rs.12,27,087/- - amount relates to import of package software, which are goods, as defined and has been explained by the Revenue - HELD THAT:- Service tax of Rs.2,150/- in respect of receipt of package software from INVATOMARKET is not taxable being goods. Further, the services received from Cloudinary Ltd. and Amazon Web Services involving service tax of Rs.1,16,063/- and Rs.3,67,045/- are not liable to be taxed as the services have been provided in the nature of immovable property as the server has been located outside India. Accordingly, the demand of Rs.4,85,258/- being not taxable to service tax is set aside - So far the balance demand is concerned of Rs.12,27,087 – 4,85,769 = Rs.7,41,821/- is concerned, it is found that the appellant have maintained proper books of accounts and transactions were duly reflected in books of accounts and proper vouchers were maintained. Further, situation is wholly Revenue neutral as the appellant was entitled to cenvat credit on the same. Further, admittedly, the appellant have discharged their service tax liability on the taxable services provided by them. Accordingly, the balance demand is also set aside on the ground of Revenue neutrality. Time Limitation - HELD THAT:- The appellants have maintained proper records and earlier also, they were subjected to audit in the month of Feb. – March, 2016. In this view of the matter, it is held that the demand upto the period October, 2015 is time barred and extended period of limitation is not available. Imposition of penalty under Section 78 and 78 A on the Director - HELD THAT:- The show cause notice has been issued by way of interpretation and/or change of opinion. The appellant company was set up in the year 2010-2011 and have been availing similar credits and filing ST-3 Returns accordingly from year to year, and in the past, never such dispute was raised by Revenue till the period 31.03.2014. Hence, the show cause notice has been issued by way of change of opinion or change of interpretation at the end of the Revenue - the benefit of extended period of limitation is not available to Revenue. The demand is confirmed only for the normal period. Accordingly, penalties under Section 78 and 78 A (on the Directors) are set aside. Penalty under Rule 15(3) of CCR is also set aside. Appeal disposed off.
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