TMI Blog2017 (7) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... ation No.9/04-ST. The entire finding which is based on the said notification is baseless and not flowing from the show cause notice. The impugned order is set aside and matter remanded to the adjudicating authority to verify the correct rate of service tax applicable on the date of provision of service and accordingly re-quantify the service tax liability if any arise - appeal allowed by way of remand. - ST/89350/13 - A/88259/17/STB - Dated:- 7-7-2017 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Technical) Shri Mehul Jiwani, C. A. for Appellant Shri B.Kumar, Iyer, Supdt. (A.R) for respondent ORDER Per Ramesh Nair The fact of the case is that the appellant is engaged in rendering taxable servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here, it is due to the reason that in the show cause notice entire value of service received in the period involved in the show cause notice was taken as a service provided whereas part of the receipt during the period April 2005 to September 2005 October 2005 to March 2006 is receipt towards the service provided in the earlier period. The rate of service tax is applicable as on the date of provisions of service whereas it appears that in the show cause notice the period was considered related to receipt of the service charges. For this reason there is alleged short payment proposed in the show cause notice. He further submits that the availment of cenvat credit of ₹ 7,80,522/- during the period April 2005 to September 2005 and S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Central Excise, Rajkot - 2008 (10) STR 243 (Tri.-Ahmd.) (xi) Commissioner of C. Ex. Cus. Vs. Reliance Industries Ltd. - 2010 (19) STR 807 (Guj.) (xii) Commr. Of Service Tax Vs. Consulting Engineering Services (I) Pvt. Ltd. - 2013 (30) STR 586 (Del.) 3. Shri B.Kumar Iyer, Ld. Superintendent (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that even after considering the abatement there is a short payment of service tax amounting ₹ 6,24,897/-, which is apparent from the Annexure to show cause notice, therefore the demand in any circumstances is sustainable. 4. We have carefully considered the submissions made by both the sides We find from both the order-i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er annexure to the show cause notice there is a differential short paid service tax arise. In this regard, the Ld. Counsel has made a submission that this difference is only due to the difference of rate of service tax between the period when service charges was received and the period when service was provided. We agree with the Ld. Counsel that during the material time the rate of service tax was applicable as on the date of provision of service and not as per the date of receipt of service charges. However both the lower authorities have not gone into this very fact which is the only subject matter of this case. We therefore set aside the impugned order and remand the matter to the adjudicating authority to verify the correct rate of ser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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