9911796707
TMI Blog2013 (5) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... e engaged in manufacturing of excisable goods fallaing under Chapter 85 of CETA, 85. Appellants were receiving services of Marketing and Management Consultancy from foreign consultancy. As the Overseas consultants were not residents of India and were not having any office in India, the liability to pay service tax fell upon the Appellants, who were the service recipients in terms of the provisions of rule 2(d) read with rule 6 of the Service Tax Rules, 1994. The appellants during the period 2008-09 paid consultancy charges amounting to Rs.30,02,998.78/- on which they have not discharged their service tax liability to the tune of Rs.3,71,171/- on the value of taxable service of Rs.30,02,998.78/-. Therefore, a show-cause notice dated 20.08.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after obtaining Service Tax Registration certificate. The penalty under section 78 not imposable as there was a clear bonafide doubt about the applicability of service tax, the penalty cannot impose. c) Any service tax paid by the appellants under the reverse charge is admissible as Cenvat credit as per the CBCE Circular No.345/1/2008-TRU dated 27.06.08. They finally requested to set aside the penalty imposed under impugned order, since service tax and interest have been paid off on being pointed out by audit party. 5. Aggrieved by such an order, the Revenue as well as the assessee preferred an appeal before the First Appellate Authority. On the assesses appeal, the First Appellate Authority upheld the impugned order, while Revenue appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 (Tri.-Ahmd.)]. 8. The ld. Additional Commissioner would submit that the Revenue neutrality as Cenvat Credit available cannot be a ground for non-payment of service tax and each and every situation cannot be termed as Revenue neutral situation. He would submit that in the case of Baba Asia Ltd. [2011 (267) ELT 115 (Tri.-Del.)] for this proposition. 9. I have considered the submissions made by both the sides and perused the records. The issue involved in this case is only as to the penalty imposed by the lower court and upheld by the First Appellate Authority. The appellant herein had discharged the service tax liability along with interest on receipt of the show-cause notice and before adjudication. It is also undisputed that the service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the assessee.
11. As regards decision cited by ld. Additional Commissioner (AR) in the case of Baba Asia Ltd (supra) I find that the very same judgment in para 19 lays down that the Revenue neutrality would depend upon the facts and circumstances of each case. In the case in hand as already recorded by me there was a confusion regarding service tax liability on an assessee under reverse charge mechanism.
12. In view of the foregoing, I am of the view that the decision of this Bench in the case of Dineshchandra R. Agarwal Infracon Pvt. Ltd. and Sagar Enterprises are applicable in this case and penalties imposed on the appellants needs to be set-aside and the appeals to the extent are allowed.
(Pronounced in Court on) X X X X Extracts X X X X X X X X Extracts X X X X
|
