TMI Blog2017 (5) TMI 1301X X X X Extracts X X X X X X X X Extracts X X X X ..... nst Revenue. - Service Tax Appeal No.52397 of 2014 - ST/A/53503/2017-CU[DB] - Dated:- 26-5-2017 - Mr S K Mohanty, Member (Judicial) And Mr. V Padmanabhan, Member (Technical) Shri Sanjay Jain, DR for the Appellants Shri A S Hasija, Advocate for the Respondent ORDER Per: V Padmanabhan The respondent is engaged in supplying the aircraft /helicopter to various entities for their use. While providing the said aircraft on chartered hire, the respondent supplied its own crew including pilot and other flying staff along with the aircraft. 2. In addition, the department noticed that the respondent incurred expenditure in foreign currency on account of purchase of spare parts and maintenance of their aircrafts. The department was of the view that such expenditure incurred by the respondent in foreign currency will fall under the Management, maintenance and repair services rendered to foreign aircraft which would be liable to service tax under the reverse charge mechanism in terms of provisions of section 66 AA. Show cause notice dated 23.10.13 issued proposed to demand service tax on the amounts received by the respondent for supplying aircrafts and the helico ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s dropped the demand of Service Tax of ₹ 5,83,28,905/- raised under the category of management, maintenance and repair under reverse charge basis without duly verifying the supportive evidence or Chartered Accountant's certificate. 4. With the above background, we have heard Shri Sanjay Jain, learned DR for the Revenue. He reiterated the points urged by the Revenue in appeal and further made written submissions dated 16.5.2017 to support the Revenue‟s case. 5. Learned Counsel for the respondent supported the impugned order. He also filed written submissions along with copies of relevant case laws. He emphasized the following case laws :- (i) CST, Bangalore Vs. C Head Info Technologies India P Ltd. [2017 (47) STR 125 (Kar)]; (ii) Tidewater Shipping Pvt. Ltd Vs. CST, Bangalore 2008 (11) STR 475 (Tri-Bang)]; (iii) Commissioner Vs. Macro Service [2015 (37) STR J 130 (Kar)]; and (iv) Amarvati Peoples Co-Op Bank Ltd. Vs. CCE Nagpur [2014 (36) STR 456 (Tri-Mum)]. 6. Heard both sides and perused the records. The adjudicating authority has held that the activities of providing aircrafts on charter hire by the respondents would be rightly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned order is incorrect or bad. Consequently, we find no reason to interfere with the decision of adjudicating authority to restrict the demand. 10. While reducing the demand of Service Tax on supply of tangible goods, the Commissioner has also allowed the respondent to adjust the amount of ₹ 14,43,02,740/- already paid by them considering their activity under service of 'transport of passengers by air' including ₹ 5,83,28,905/- paid through cenvat. Revenue is aggrieved with the fact that before allowing such adjustment, Commissioner failed to undertake detailed verification by supporting documents on the basis of which the above adjustment was allowed. On going through records, we note that adjudicating authority has allowed adjustment of the total Service tax paid by respondent and reported in periodic ST-3 returns. There is nothing on record challenging the figures in the ST-3 returns. Tax already paid under a wrong category can always be considered towards the liability under the new category. Hence, we find no infirmity in the finding of the Commissioner. 11. In the relevant Show cause notice, demand stands raised on reverse charge mechanism under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roposed penal action under section 76,77 and 78 of the Act, as they failed to assess the tax, file the return and deposit the tax within the prescribed period as discussed in the preceding paragraphs. However, I find that during the course of investigation, the assessee admitting their liabilities has paid whole of the outstanding service tax amounting to ₹ 15,40.30,674/- (including CEss and SHEC) through Cash and cenvat credit voluntarily along with interest of ₹ 54,00,892/- which shows their bonafide that they had no intention to evade the tax liabilities. I find that there remains no outstanding service tax liability against them. I further find that section 73(3) of the Act provides that an assessee may pay such amount of service tax not paid or short paid along with interest payable under Section 75 of the Act before service of notice on the basis of (i) own ascertainment of such tax; or (ii) tax ascertained by the Central Excise officer. Further, after payment of tax, the assessee should inform the Central Excise officer in writing about such payment, and then the Central Excise officer shall not issue any SCN under section 73(1) in respect of service tax so paid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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