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2024 (4) TMI 172 - AT - Service TaxTaxability - advance payments - failure to issue invoice/bill on receipt of certain payments towards the value of taxable services, even in case where these payments were received as advance - non-payment of service tax - Consulting engineer services - point of taxation Rules - HELD THAT:- From the facts of the case it is clear that appellant has failed to pay the service tax at the time when it became due. As per the said rule undisputedly when the appellant raised the invoice in respect of these i.e. on completion of the project or at any time, they were making proper accountal and payment of service tax for which reason there is no discrepancy noted in the balance sheet, ST-3 return and from Form 26AS. Nothing has been brought on record as to the effect that service tax in respect of these payments received have not been paid. The entire case against the appellant is that they have not paid service tax at the time as determined under Rule 3 of Point of Taxation Rules, 2011. Even if the allegations made in the show cause notice and in the impugned orders are to be accepted but the service tax on the entire taxable value has been paid on finalization of the service contract with the Government Departments. There cannot be any short/nonpayment of service tax - No exercise has been undertaken in the present case to correlate the payments received as advances, in case of completion of stage, even in case of continuous supply with final invoice issued on completion of the projects. Such a re-conciliation is necessary to determine the tax short paid, if any. In any case if the tax has been found to be paid against the entire value of contract/project undertaken by the appellant, there cannot be any further demand of service tax. In the case of M/S VODAFONE DIGILINK LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX [2019 (7) TMI 521 - CESTAT NEW DELHI] it was held that Since the point of taxation has not occurred under any of the clauses of the said Rule 3, the liability to pay service tax has not arisen. To undertake the exercises of re-conciliation, the matter needs to be remitted back to the Original Adjudicating Authority for recording specific findings in the matter - Appeal allowed by way of remand.
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