TMI Blog2007 (2) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... ts that arise for consideration are that the appellant filed a refund claim of Rs. 1,47,358/- in respect of the amount paid by them as Service Tax for the period October, 2003 to November, 2003 in respect of the services received by them from a non-resident engineering consultants. A show cause notice was issued to the appellant proposing to reject the refund claim on the ground that the Service Tax paid by the appellant is correct and the appellant being a service receiver has correctly paid the amount as service tax. Appellant resisted the show cause notice mainly on the ground that they are not liable to pay the service tax as per the provisions of the Section 68 of the Finance Act, 1994 and the amount paid by them is not in accordance w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the provisions of Rule 2(d)(iii) of the Service Tax Rules. It is his submission that the Service Tax paid by the appellants, was on-their own volition and hence now cannot claim the refund of the amount paid voluntarily by them. He relies upon the decision of the Tribunal in the case of J.K. Industries Ltd. v. CCE, Indore as reported at 2006 (3) S.T.R. 14 (Tri.-Del) for this proposition. 5. Considered the submissions made at length by both sides and perused the records. It is undisputed that the appellant is receiver of the services from a engineering consultant, who does not have a office in India. it is also un disputed that the service provider is based at a foreign country and is non resident. It is also not in dispute that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service to pay the service tax. In the case before me it is undisputed that the appellant is not a service provider hence, the provisions of sub-section (1) will not apply. The framers of the law envisaging a situation that the service receiver may also be made liable to pay the Service Tax on the services received by them, carved out an exception under sub-section (2) of section 68. The said sub-section (2) mandates the service receiver to discharge the Service Tax liability in relation to specified services that may be notified by the Central Government. The Central Government vide Notification No. 36/2004-S.T. dated 31-12-2004 notified the following service receivers as liable to pay the service tax: Service tax payment in relation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication shall come into force on the first day of January, 2005. [Notification No. 36/2004-S.T., dated 31-12-2004] [emphasis supplied] 7. It is seen from the above said notification that the service receiver of the services provided by the non-resident was notified by the Central Government as liable to pay the Service Tax from 1-1-2005 This would indicate that prior to this date, a service receiver from the non-resident service provider was not liable to pay the service tax. If that be so, it is seen from records, that in this case the services were received by the appellant from the non-resident prior to the date of this notification 8. It was the contention of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative, it is seen that the said decision was rendered in the case of recipient of services of the GTO, which was made taxable by retrospective amendment. In this case, no such retrospective amendment was brought to notice of the Bench by either side. 11. It is well settled law that the rules are subservient to the sections and if section do not provide for discharge of tax by the recipient of services from non-resident having no office, then it would be a futile exercise to rely upon the rules to collect the tax. 12. In this case, it on record that the appellant received the services from the non-resident service provider before 31-12-2004. In the facts and circumstances of the case, the impugned order rejecting the refund claim o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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