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2023 (8) TMI 185 - CESTAT NEW DELHIWrong classification of services availed by the appellant - providing travel facility by air by way of providing its aircraft on charter basis - supply of tangible goods for use (SOTG) service of transport of passengers by air service - non-payment of service tax under the reverse charge mechanism on payments made to foreign vendors for repair works aircraft outside India - Denial of CENVAT credit of Rs. 33,96,323/- as the appellant had not submitted the relevant documents relating to credit availed by it. Wrong classification of services availed by the appellant as the services provided by the appellant would fall under SOTG as defined under section 65(105)(zzzzj) of the Finance Act, 1994 [the Finance Act] instead of transport of passengers by air as defined under section 65(105)(zzzo) of the Finance Act - HELD THAT:- It is not in dispute that SOTG service became leviable to service tax only with effect from 16.05.2008. The service tax, therefore, for the period from 01.04.2008 to 15.05.2008 deserves to be set aside - Though the appellant has asserted that service tax was paid under category of transport of passenger by air services, but this fact needs to be verified. Non-payment of service tax under the reverse charge mechanism on payments made to foreign vendors for repair works aircraft outside India - HELD THAT:- Rule 3(ii) provides that subject to Section 66A of the Finance Act, the taxable services provided from outside India and received in India, shall, in relation to the taxable service specified in sub-clause (zzg) of section 65 (105) of the Finance Act be such services as are performed in India. The contention of the learned counsel for the appellant is that it is an admitted fact that the services were provided from outside India and, therefore, would not be leviable to service tax - this submission deserves to be accepted. It is only in a case where such services are performed in India that they would be leviable to service tax. In the present case, it is not in dispute that the services were provided outside India. Service tax, therefore, could not have been demanded from the appellant under the reverse charge mechanism. Denial of CENVAT credit of Rs. 33,96,323/- as the appellant had not submitted the relevant documents relating to credit availed by it - HELD THAT:- A perusal of the letter dated 24.05.2016 sent by the appellant to the Principal Commissioner does indicate that during the course of hearing the appellant had offered to produce the entire original record for verification and the Principal Commissioner had assured the appellant that a date for this purpose would be intimated to the appellant. However, as the date was not intimated, the appellant had offered to produce the documents. The Principal Commissioner has stated in paragraph 7.5 of the impugned order that the appellant had not produced all the invoices of all the service providers. It is, therefore, appropriate that the matter is remanded to the adjudicating authority to permit the appellant to produce the records so that a fresh order on this aspect can be passed after examination of the documents. Appeal allowed in part and part matter on remand.
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