TMI Blog2011 (3) TMI 805X X X X Extracts X X X X X X X X Extracts X X X X ..... e, for the Appellant. Shri W.L. Hangshing, Jt. CDR, for the Respondent. [Order per : P.G. Chacko, Member (J)]. This matter arises before us on account of a remand order passed by the Hon ble High Court of Bombay. We had directed the appellant to pre-deposit an amount of Rs. 35 lakhs under Section 35F of the Central Excise Act vide Order No. S/130/10/CSTB/C-II, dated 18-5-2010 [2011 (21) S.T.R. 2002 (Tri.-Mumbai)], which was challenged by the party before the Hon ble High Court of Bombay in Central Excise Appeal No. 77 of 2010. The Hon ble High Court by order dated 31-8-2010 directed fresh consideration of the question whether the appellant should be directed to make any pre-deposit of Service Tax demanded under the head Market Research Services . Accordingly, this matter is taken up for fresh consideration and decision. 2. The learned Counsel for the appellant, at the outset, submits that no taxable service was involved in the appellant s transactions with WNS UK or WNS NA. In this connection, he refers to certain agreements and claims that nothing contained therein would constitute market research service of the appellant. The second submission made by the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India as a Software Technology Park Unit. After collecting the particulars of inward and outward remittances, the department took the view that the appellant was liable to pay Service Tax on the services exported by them during March, 2003 to January, 2005. It was felt that the benefit of Notification No. 21/03-ST dated 20-11-2003 or its predecessor Notification was not available to them. On this basis, the demand of Service Tax was raised and penalties were proposed. The relevant show-cause notice issued in this behalf alleged that the appellant had suppressed material facts with intent to evade payment of tax and consequently, the extended period of limitation was invocable in this case. In adjudication of the show-cause notice, the Commissioner held against the party on merits and on limitation. The learned Counsel submits that the relevant allegations in the show-cause notice were denied by the appellant in their reply and written submissions. It is submitted that it was contended that the amounts found by the Commissioner to have been repatriated from India by the appellant were, in fact, the consideration paid by them for some other services rendered by WNS UK and WNS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Shetty clarified that the aforesaid payments to WNS UK and WNS NA were not payment made to them but, in fact, inter- company transactions. On the basis of the statements of the senior functionary of the appellant-company and the documentary evidence gathered by the investigators, the show-cause notice alleged as above. In this scenario, as rightly pointed out by the learned Jt. CDR, the burden fell on the appellant not only to deny the allegation but also to disprove it. In this connection, we have perused their reply to the show-cause notice, which does not contain any substantive contention vis-a-vis the above allegation; it contains only literary arguments on the distinction between repatriation and payment . The tenor of the reply is a bid to show that the aforesaid amount paid by the appellant to WNS UK and WNS NA could not be treated as repatriation of money. Paragraphs 3.12 and 3.13 of reply to the show-cause notice are reproduced below :- 3.12 Therefore, the payment made by WNS India to WNS UK and NA being under specific service agreement cannot be regarded as repatriation. 3.13 Given the above and the distinction between payments and repatriation , the service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mounts in foreign currencies were repatriated by the appellant to WNS UK and WNS NA during, or soon after, the period of dispute (1-3-2003 to 31-1-2005). The allegations were clearly raised in the show-cause notice calling upon the appellant to show that such payments did not constitute repatriation of the consideration received earlier by the appellant from the foreign companies for market research agency s service. Their reply to the show-cause notice failed to meet the challenge, nor could the appellant prove their limited defence before the adjudicating authority by meaningful reliance on any documentary evidence. In this scenario, we are constrained to hold that prima facie case has been established by the Revenue for demand of Service Tax under the head Market Research Agency s Services . We have taken this view after considering the fact that, apparently, there is no dispute that the transaction in question would have been exempted from payment of Service Tax but for the repatriation of sizeable amounts by the appellant to the service recipients abroad. As rightly pointed out by the learned Jt. CDR, the relevant Notifications, which were in force during the period of di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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