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2018 (4) TMI 776

) Rules, 2006 - appellant have received Business Auxiliary Service(BAS) and Technical Testing and Analysis Service (TTA) from foreign based firms during the period from 25.5.2009 to 22.6.2011 and 20.5.2010 to 30.3.2012 respectively - non-payment of service tax - penalty. - Held that: - the technical testing analysis service covered under sub-clause (zzh) received from outside India is taxable provided such service is partly performed in India - In the facts of the present case, the testing of spacer damper was wholly performed outside India in the foreign country by a foreign based testing agency. No part of the testing was provided in India for the reason that the testing agency is located outside India. - Even though the goods on .....

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010 to 30.3.2012 respectively but did not pay service tax thereon under the reverse charge mechanism. Hence, the investigation was initiated by the Officers of the Directorate General of Central Excise Intelligence (DGCEI) which finally led to issue of show a cause notice dt.26.12.2012 to the appellant which was adjudicated and the charges raised in the show cause notice was confirmed. Being aggrieved by the order-in-original, the appellant filed appeal before the Commissioner (Appeals) who rejected the appeal, therefore the appellant is before us. 2. Shri R.B. Pardeshi, Ld. Counsel appearing on behalf of the appellant submits that they send their products namely Spacer Damper to Canada and China where the calibration testing on the said go .....

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contesting the same. However he submits that the penalty should not be imposed for the reason that the issue involved is of interpretation of reverse charge provision. Further the appellant is entitled for the cenvat credit of the service paid/payable in respect of both the services, therefore there is no malafide intention being the issue of revenue neutral, therefore the penalty under Section 77 & 78 are not imposable. On the issue of penalty he placed reliance on the following judgments: (i) Rajkumar Forge Ltd. Vs. Union of India 2010 (262) ELT 155 (Bom.) (ii) Commissioner of Central Excise, Indore Vs. Raymond Ltd. 2017 (6) G.S.T.L. 225 (S.C.) (iii) Kirloskar Oil Engines Ltd. Vs. Commissioner of Central Excise, Nasik 2004 (178) E.L.T .....

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he penalty was rightly imposed. 5. We have carefully considered the submissions made by both the sides. We find that the demand of service tax on the Technical Testing Analysis service was raised on the basis of Rule 3 of Taxation of Services (Provided from Outside India and Received in India) Rules, 2006, which reads as under: 3. Taxable services provided from outside India and received in India.- Subject to section 66A of the Act, the taxable services provided from outside India and received in India shall, in relation to taxable services - (i) specified in sub-clauses (d), (p), (q), (v), (zzq), (zzza), (zzzb), (zzzc), (zzzh), (zzzr), [(zzzy), (zzzz) and (zzzza)] 1 of clause (105) of section 65 of the Act, be such services as are provided .....

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foreign country by a foreign based testing agency. No part of the testing was provided in India for the reason that the testing agency is located outside India. Even though the goods on which test was conducted and certificate issued therefore were received by the recipient in India but the fact remains that the service of Technical Testing and analysis was only performed in abroad, no part of it was performed in India. Therefore the technical testing and analysis service on the reverse charge basis is not taxable in terms of Rule 3(iii) of Rules 2006. The said provision was prevailing upto 1.4.2011 as w.e.f.1.4.2011 vide Notification No. 23/2011 S.T. dt.31.3.2011 clause (zzh) was omitted under Rule 3(iii) of Rule 2006. The submission of th .....

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he issue was not free from doubt. 7. As regard Business Auxiliary Service since the appellant is a manufacturer of goods, the service tax paid/payable on services on reverse charge basis is available as cenvat credit to the appellant. Therefore it cannot be said that there is any malafide intention in non payment of service tax. Accordingly the penalty is not imposable under Section 77 & 78 by invoking Section 80. As per our above discussion , we pass the following order: (i) Demand of Service Tax in respect of Business Auxiliary Service is upheld. (ii) Demand of Service Tax in respect of Technical Testing and Analysis Service upto the period of 31.3.2011 is set aside. However the service tax demand on this service from 1.4.2011 onwards .....

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