TMI Blog2018 (4) TMI 1244X X X X Extracts X X X X X X X X Extracts X X X X ..... s enacted in Finance Act, 1994. Since there was no provision to charge service tax on services received from outside India, there cannot be any demand even on merits on services received before 18.04.2006. Once the demand under the category of MMRS itself has held to be not sustainable, in that case the subject demand is also not sustainable. The whole issue involved is revenue neutral. Even assuming that if the service tax was payable, the same was available to the Respondent as cenvat credit. Time limitation - Held that: - the nature of services was in the knowledge of the revenue since 2008 as appearing in the regular correspondence with the revenue. In such case when the facts were in the knowledge of the department there is no ground to raise demand by invoking extended period of limitation - demand is time barred. Demand not sustainable - appeal dismissed - decided against Revenue. - ST/434/2012 - A/85965/2018 - Dated:- 10-4-2018 - Shri Ramesh Nair, Member (Judicial) and Shri Raju, Member (Technical) Shri Rishi Goyal, Addl.Commr. (A.R.) with Shri Roopam Kapoor, Commr. (A.R.) for Appellant Shri Gopal Mundra C.A with Shri Ginita Bodhani, Advocate (A.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of CBEC Clarification vide F. No. 137/21/2011 ST dt. 15.07.2011 and that the services received under the Service Operation and Maintenance Agreement dt. 27.02.2003 are not taxable at the end of Respondent as the same was rendered outside India. Hence the present appeal by revenue. 2. Shri Roopam Kapoor, ld. Commissioner, AR with Shri Rishi Goyal, Ld. ADC, AR appearing for the revenue submits that M/s Flag telecomm has provided services in relation to the bandwidth capacity on their undersea cable systems to the Respondent which are in the nature of infrastructural support. The said infrastructural support provided by M/s Flag enables the Respondent to further provide Leased Circuit Services or Telecommunications Services to their clients. Since the Support Service of Business or Commerce were provided by M/s Flag who is located outside India, the same is liable to be taxed at the end of respondent. The ownership of under seas cable systems is not transferred to the Respondent and there is only Indefeasible Right to use (IRU) underseas cable system for specified duration. He submits that Service Recipient is deemed service provider. Further that the Respondent had be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order in so far as pertains to dropping of demand under BSS has attained finality and cannot be disturbed at this stage and the arguments canvassed by the revenue in case of Support Service are beyond the review order. He relies upon the Tribunal order in case of CCE, Delhi Vs. Pymen Cable India Ltd. 2016 (335) ELT 174 (TRI). On merits he submits that no service tax is payable on import of service prior to 18.04.2006 and therefore the demand prior to said period is liable to be set aside. He submits that in case of BSS the revenue has challenged only part demand on credit notes amounting to ₹ 75,22,003/-. He submits that the said credit notes pertain to service, maintenance and operation service rendered by M/s Flag and the demand on same is adjustable if demand is confirmed against them under the category of Management, Maintenance and Repair Service. He further submits that the services provided by M/s Flag Telecom to the Respondent under the category of Capacity Sales Agreement (CSA) and Service Operation and Maintenance Agreement (SOMA) is not liable for tax as they are in the nature of leased circuit services which fall under the category of Leased Circuit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r information through cable network. The tax is not payable as they are in relation to the services of leased circuit and thus in the nature of telecommunication service. That even if assumed service is treated in nature of MMR, the taxability would be determined on the location of service where the restoration is carried out. That in absence of any findings that any service was carried out in India, no tax is payable. He also submits that the demand has been raised by invoking extended period whereas as seen from the facts in the show cause notice as there is no element of fraud, suppression etc. He submits that even if assumed that the demand is payable but the same is not recoverable as the issue involved is revenue neutral. Whatever tax would have been paid is available as credit to the Respondent. 4. We have carefully considered the submissions made by both the sides. We find that the Respondent had entered into agreement with M/s Flag Telecomm towards Capacity sales agreement of band width capacity on the systems owned by M/s Flag Telecomm against payment of access facilitation charges per unit of capacity and charges for leased circuit service. Further agreement towards S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s Flag has carried out any restoration work in India, in that case there cannot be any service tax liability on the Appellant. Apart from the above, we find that part demand pertains to period prior to 18.04.2006 i.e the date on which Section 66A was enacted in Finance Act, 1994. Since there was no provision to charge service tax on services received from outside India we, are of the view that there cannot be any demand even on merits on services received before 18.04.2006. The revenue has also challenged the dropping of demand to the extent of ₹ 72,55,003.42 on credit notes issued to M/s Flag Telecom on the ground that the adjudicating authority has failed to examine the credit notes and the reason leading to their issuance and has thus wrongly concluded that the same should be adjusted against service tax liability under MMRS. We find that once the demand under the category of MMRS itself has held to be not sustainable, in that case the subject demand is also not sustainable. Further we find that the whole issue involved is revenue neutral. Even assuming that if the service tax was payable, the same was available to the Respondent as cenvat credit. Thus the demand even doe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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