TaxTMI 
TaxTMI 
2015 (8) TMI 68
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....lf of the appellant argued that appellant paid service tax on services of renting of immovable property and sale of space for advertisement provided to M/s. Reliance Industries Limited (service recipient). That service tax on the said services was not leviable as service recipient did not pay any service tax to the appellant. That Reliance Industries Limited has given a certificate dated 06.10.2011 that they have not paid any service tax to the appellant and has also not taken any service credit on that amount. That the Chartered Accountant's certificate dated 05.3.2014 from M/s. Rases Shah & Co., Chartered Accountants, Surat was also placed before the first appellate authority to establish that service tax paid was not recovered from the s....
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....st appellate authority in Para 5(v) and (vi) of OIA dated 25.3.2014 that appellant produced a certificate dated 06.10.2011 issued by M/s. Reliance Industries Limited certifying that service recipient has neither paid service tax on the payments made to the appellant nor taken credit of service tax paid on the bills raised by the appellant. It is also recorded that appellant has produced Chartered Accountant's certificate dated 05.3.2014 certifying that appellant has not received any payment towards service tax from the service recipient. In Para 5(vii), the first appellate only decided the issue, as per Para 22 of the OIO dated 09.9.2010, that appellant has passed on liability of service tax to the service recipient and, therefore, unjust-e....
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....te that as per ledger produced they have not received the full amount from the client for the work done; that they have issued credit note for the wrong service tax charged in the bill and thus the issuance of credit has effectively reduced their bill amount from their client; placed reliance on the case laws of Jyoti Ltd. - 2008 (232) E.L.T. 832, Prachar Communication Ltd. - 2006 (2) S.T.R. 492 (Tri. - Mumbai), Kirloskar Ebara Pumps Ltd. - 2007 (5) S.T.R. 280 & M.A. Financial Services - 2006 (2) S.T.R. 350. 5. The appellate authority considered the various clauses of the contract entered into between the respondent and M/s. Alcock Ashdown (Gujarat) wherein the price was to be inclusive of all taxes, levies, duties etc. He also took note o....
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....ficate of the buyer also show that the amount of service tax was not received by the respondent from their customers. As such we find no infirmity in the view adopted by Commissioner (Appeals). Accordingly the appeal filed by the Revenue is rejected." 4.1 The above order passed by CESTAT Ahmedabad was taken to the High Court by the department and Hon'ble Gujarat High Court vide order dated 21.08.2012, reported as CCE & ST vs. Modest Infrastructure Limited [2013 (31) STR 650 (Guj.)], upheld the order passed by CESTAT Ahmedabad by making following observations in Para 11:- "11.?Once the M/s. Alcock Ashdown (Gujarat) themselves issued certificate that the amount of service tax was not received by the respondent from their customers then ....