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2016 (12) TMI 287 - CESTAT NEW DELHILevy of tax - revenue neutral exercise - availing the services of foreign commission agent - reverse charge mechanism - whether as a recipient of services, appellant was required to pay service tax on reverse charge basis? - Held that: - the Tribunal in the case of Kansara Modler Ltd. Vs. CCE, Jaipur-II [2014 (1) TMI 1095 - CESTAT NEW DELHI] has held that wherever the service recipient discharges service tax liability on reverse charge basis, he has to be considered as output service provider, thus entitling utilizing the payment of such service tax. It was found that during the period 2008-09 to 2009-10, the appellant did not discharge the service tax liability. On being pointed out, it paid the same from its Cenvat account to the extent of ₹ 61,11,826/-. As regards the balance amount, it contested that it has not paid the commission to its foreign agents and as such the question of payment of service tax does not arise - Held that: - As the fact of subsequent payment of service tax is required to be ascertained from records, we deem it fit to set aside that portion of the impugned order for examining and verifying the documents. As regards, penalty, we agree with ld. advocate that the issue was under litigation and was finally settled by Honble Bombay High Court in the case of Indian National Shipowners Assn Vs. Union of India [2008 (12) TMI 41 - BOMBAY HIGH COURT]. Otherwise also, we note that whatever the commission was required to be paid by the appellant was available to them as Cenvat credit and as such the entire situation was revenue neutral. In this scenario, any mala fide or suppression of facts with an intention to evade payment of duty cannot be attributed to the assessee so as to invite penal action against them. Appeal disposed off.
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