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eClouds Versus Commissioner of Central Excise, Coimbatore And Vice-Versa

2016 (5) TMI 1052 - CESTAT CHENNAI

Computation of interest on service tax not paid or delayed paid - Revenue contended that Commissioner ought not to have adjusted the service tax payable on the import with that paid on the output service. - Held that:- no serious infirmity is found in the view taken by the Commissioner that adjustment of service tax payable in the import of services as well as paid on the output service can be permitted as long as the liability is adjusted within the same service payment cycle. However, we feel .....

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sidered in the light of decision of CESTAT Bangalore brought to our notice by the appellant-assessee. - Appeals disposed of by way of remand - Appeal No.ST/256/2011 with ST/CO/14/2011 & Appeal No.ST/258/2011 - Final Order No.40840-40841/2016 - Dated:- 20-5-2016 - SHRI D.N. PANDA, JUDICIAL MEMBER AND SHRI V. PADMANABHAN, TECHNICAL MEMBER For the Petitioner : Shri R. Chandrasekaran, AC (AR) For the Respondent : Shri S.Durairaj, Advocate ORDER PER V. PADMANABHAN The present appeals by the Revenue a .....

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t-assessee is a service provider who imported, on several occasions, Digital Control Software (DCS) from M/s.Minerals and Metals, FIE, Jabel Ali, Dubai. The appellant-assessee carried out repairs to imported software to make the software usable for their customers in India and supplied the same to their local customers. The view taken by the Commissioner in the impugned order was that the software imported by the appellant-assessee was in the category of "Information Technology Software Ser .....

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pplied the software to their customers in India and on this activity, they have discharged service tax under the category of "Management, Maintenance or Repair Service" in terms of Section 65 (64) of the Finance Act, 1994. In the impugned order, the Commissioner held that appellant-assessee was liable to pay service tax for the import of software services under the category of Information Technology Software Service under the reverse charge mechanism. However, he observed that the ag .....

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held that appellant-assessee is to be considered as a proprietary concern of Shri R. Shanthakumar and that the service tax paid in the accounts of (1) M/s.Android Automation as well as (2) M/s.eClouds [both proprietary concerns of Shri R. Shanthakumar]is to be considered as paid by Shri R. Shanthakumar. Since proprietary concerns need to pay the service tax only on or before the 5th of the month immediately following the quarter in which the payments are received towards the value of taxable ser .....

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ed to have been duly paid and appropriated on the import of software services when the appellant-assessee paid the service tax on the output service. 4. Heard Ld.D.R appearing on behalf of Revenue and Ld.Advocate for the appellant-assessee. 5. Ld. D.R argued that the Commissioner has arrived at the various conclusions in the impugned order by simply relying on the relevant claim without giving any definite findings and without carrying out any independent verification with relevant records. In r .....

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would be 5th July 2008. For the delay of 90 days in payment of service tax, interest liability would arise which has not been considered by the learned Commissioner in the impugned order. 6. The learned advocate for the appellant-assessee submitted that the appeal filed by them was directed against the classification of the service imported by them. Their claim is that it is classifiable under Management, Maintenance or Repair Service specified under Section 65 (105) (zzg) of the Finance Act,19 .....

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e service similar to that provided by the appellant-assessee was classified under Management, Maintenance and Repair Service. 7. To the point raised by the Ld.DR, he admitted that the two invoices in the names of M/s.Sara Enterprises as well as by M/s.Technicon Automation which stand included in the computation of total value of imported software services in the impugned order, were not for import but for service domestically procured by them. 8. We have perused the records of this case and give .....

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findings has already held that the imported software serviceis liable for service tax under reverse charge mechanism in terms of Section 66A. This finding has not been challenged by either party before us. However, the appellant-assessee has contended that it is classifiable under Management, Maintenance or Repair Service" as against the classification of Information Technology Services in the impugned order. There is no dispute that the service tax to the tune of ₹ 4,92,23,529/- ha .....

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en carried out in India by them. Consequently, there is no doubt in our minds that any service tax paid on such import under reverse charge mechanism would be rightly available to the appellant-assessee by way of cenvat credit on input services subject to satisfying the conditions prescribed in the Cenvat Credit Rules, 2004. They may utilize such credit for discharge of the service tax on the output service. However, we hasten to add that the liability for payment of service tax under reverse ch .....

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