TMI Blog2015 (12) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... that “because the appellant never clarified as to why such amount was spent, it can be deduced that the payments made in foreign exchange were undoubtedly for the services received by the appellant in India in relation to the said taxable services” is completely devoid of legal basis because it is Revenue which is required to establish that the amount of foreign exchange spent was for receiving taxable service from abroad. Further, the observation of the adjudicating authority that the appellant never clarified as to why such amount was spent is also not correct as the appellant gave details of the foreign exchange expenses and the purposes thereof. The observation of the adjudicating authority that, “hence it is invariably admitted and stand proved that there is a direct nexus between the said expenditure and the taxable service” is factually incorrect because the appellant never so admitted. While Revenue may not be required to prove the case with mathematical precision, it does not mean that Revenue can simply presume that all the foreign exchange payments were for obtaining taxable services from abroad and abdicate its responsibility to establish the case on the principle of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty demand or service tax demand on rental on crates. Customs, Excise and Service Tax Commissionerate, Hyderabad dropped the demand of service tax both under Business Support Service as well as under Supply of Tangible Goods service (for the period May, 2006 to November, 2008) on such rentals. (iii) Mumbai Commissionerate confirmed the demand of central excise duty by construing crate rental as additional consideration includible in assessable value and in that case the appellant has got unconditional stay from CESTAT. (iv) Chartered Accountant certificate was produced showing that the balance sheet of the appellant merely consolidated the amounts reflected as crate rentals in the respective financials of the manufacturing units. 4. As regards service tax demand pertaining to foreign currency expenditure, the appellant contended that (i) the total foreign currency payments reported in Notes to accounts of Financials were on accrual basis; however the liability to pay service tax was on actual expenditure under reverse charge mechanism. (ii) The appellant further submitted that the entire breakup of the foreign currency payments on accrual and actual basis and stated that approp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order reiterating the grounds contained therein. 6. As both sides agreed that the appeals themselves can be taken up at this stage, we proceed to do so waiving requirement of pre-deposit. 7. We have considered the contentions of both sides. It is seen that the adjudicating authority has confirmed service tax demand on crate rentals under Business Auxiliary Service (BAS). The appellant has contended that the supply of crates amounted to deemed sale, which was liable to VAT/sales tax as the effective control and possession of the goods were transferred by the appellant. It is seen that Customs, Excise and Service Tax commissionerate, Thane-I, vide Order-in-Original No.93/BR-93/ Th-I/2012, dated 28.02.2012 confirmed the demand of central excise duty on amount collected as crate rental holding that the same was includible in the assessable value for the purpose of central excise duty. Hyderabad Commissionerate vide its Order-in-Original No.31/2011/Hyd-III/Adjn-ST, dated 15.12.2011 has dropped a similar service tax demand on crate rental. The issue however is more decisively settled by the judgement of Andhra Pradesh High Court in the Writ Petitions No.21115/2005 and No.8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntions in toto are void ab initio. Hence, it cannot be the case that the Department is bound to prove with mathematical precision when the assessee acknowledged the facts about the import of services. Hence, I have no iota of doubt that the respective values during the material period are liable to be subjected to payment of service tax and cess and accordingly, the demand arising thereof, of Service Tax including Cess is confirmed under Section 73(1) of the act ibid along with interest under Section 75 of the Act ibid. We are unable to agree with the observation of the adjudicating authority that the onus to prove otherwise (i.e., that the service tax was not payable) rested on the appellant . There is no provision in law which casts the onus of proving that service tax is not leviable on the appellant. The onus to prove that the service tax is leviable is totally on Revenue. Similarly, the observation of the adjudicating authority that because the appellant never clarified as to why such amount was spent, it can be deduced that the payments made in foreign exchange were undoubtedly for the services received by the appellant in India in relation to the said taxable service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y certified. Further, we find the said component of demand is confirmed by observing as under:- 86.2 It is a matter of fact that the assessee is registered under the provisions of Finance Act, 1994 for providing Taxable Services namely Commercial Training and Coching , Information Technology Software Service , Management, Maintenance and Repair Service , Technical Testing and Analysis Service, Erection, Commissioning or Installation Service and Internet Telecommunication Service . On enquiry, the assessee vide letters dated 12.03.2010, submitted that their corporate office was paying Service Tax, apparently for import of services under reverse charge mechanism under the categories of Technical Testing and Analysis Service, Erection, Commissioning or Installation Service and Internet Telecommunication Service; however, assessee was not registered under these categories. Hence, it is further evident that the assessee is aware of the given facts about the import of services, applicability of Service Tax on such services, payment of Service Tax by them as service recipient. Hence, it is undoubtedly, the natural assumption that the above said payments in Foreign Exchan ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
