TMI Blog2017 (11) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... ce etc - Since the adjudicating authority has not verified the factual aspect of the above issues raised by the appellant, matter needs to be remanded to the adjudicating authority - appeal allowed by way of remand. - ST/275/09 - A/90390/17/STB - Dated:- 26-10-2017 - Mr Ramesh Nair, Member(Judicial) And Mr. Raju, Member (Technical) Shri. Vinay Jain, C.A. for the Appellants Ms. P. V. Shekhar, Joint Commissioner(A.R.) for the Respondent ORDER Per : Ramesh Nair The appellant are engaged in the manufacture and sale of pharmaceutical products. The appellant had offered for purchase of Global Depository Shares (GDS) and entered into purchase agreement dated 12-4-2006 with M/s. CLSA Singapore Pvt Limited, Singapore and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of whole of the service tax payable. The appellant are paying central excise duty on the final product manufactured by them. Had the appellant paid service tax on the aforesaid alleged import of services, the appellants would have entitled to avail credit of the same. The appellants have already paid the service tax under protest therefore entire exercise would become revenue neutral, accordingly, no demand would survive in such situation, therefore impugned order is liable to be set aside on this count alone. In this regard he placed reliance on the following judgments (a) Jain irrigation system Ltd Vs. Commissioner[2015(40)S.T.R. 752 (b) Mahindra Mahindra Vs. CCE, in appeal No. E/1127/07 E/2222/06 vide order No.86741 -86 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n also extended period could not have been invoked. He submits that appellant were paying service tax to the tune of ₹ 11 crores annually and maintaining regular books of account therefore there cannot be allegation that appellant had intention to evade payment of service tax amount of ₹ 83,68,527/- which appellant immediately paid alongwith interest before issuance of show cause notice. He further submits that service provided period to 18-4-2006 at the relevant time. The time for accruing service tax liability is the provision of services therefore since service was provided prior to 18-4-2006 service tax on reverse charge basis cannot be demanded, even though payment was made after 18-4-2006. As regard the merit of the case a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly covered in the following judgments in case of Tata Steel Ltd Vs. Commissioner of Service Tax, Mumbai-I[2016(41)S.T.R. 689(Tri. Mumbai)]. She further submits that as regard the claim of the appellant when the service was rendered prior to 18-4-2006, on the analysis of the agreement it can be seen that majority of the activity took place on 18-4-2006. The GDR offering circular clearly states that the joint Global Coordinators expect to deliver the GDS on or about 18-4-2006. When the offer letter clearly mentions that the date of delivery of GDS as 18-4-2006 then how can it be said that the service was rendered prior to 18-4-2006. She further submits that as per the condition, fees was suppose to be paid only when the transaction is con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd limitation in light of consideration of above issues. From the impugned order it is observed that the adjudicating authority has not examined the factual aspect on the aforesaid issues. As regard the issue of revenue neutrality, as per the judgments relied upon by the appellant which were given on the same issue have not been considered properly by the adjudicating authority. We are of the view that all the issues such as revenue neutrality, period of service and limitation has to be considered in the facts of the present case. As regard the revenue neutrality even though the Cenvat credit is available to the appellant, the fact that during the relevant period appellant were discharging excise duty/service tax in cash to the extent equal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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