TMI Blog2018 (8) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... be made limited to the period from 18.04.2006 to 31.12.2006 and penalty under Section 78 would also be equivalent as per the amount of duty payable for the period. Service Tax for the period from 18.04.2006 onwards - CENVAT Credit - revenue neutrality - Held that:- The facts of the case and the submissions of the appellants did not make it clear whether the appellants are registered as Service Tax providers and whether they are availing facility under CENVAT Credit Rules and are following proper procedure - the appellants are liable to pay the Service Tax for the period from 18.04.2006 to 31.12.2006. If the appellants are otherwise liable to take credit of the same and to obtain a refund of the same cannot be decided at this end - As no refund claim is filed, the issue cannot be decided at this stage. For this reason the issue needs to go back to the original authority. Appeal allowed by way of remand. - ST/191/2009-DB - Final Order No.21108/2018 - Dated:- 7-8-2018 - HON'BLE MR. S.S GARG, JUDICIAL MEMBER And HON'BLE MR. P. ANJANI KUMAR, TECHNICAL MEMBER Mr. K. S. Ravi Shankar, Advocate Mr. N.Anand, Advocate For the Appellant Dr. J.Harish, AR For the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary service provider for the export of services ultimately can be consumer/merged with the services that are being exported and no Service Tax would be leviable on such secondary services. The Circular was in force till 10.05.2007, the Circular is binding on the departmental officers in view of the Hon ble Supreme Court s decision in the case of Dhiren Chemical Industries, 2002 (139) ELT 3 (SC). 2.2. The learned counsel further submitted that even after reverse charge mechanism has come into force after 18.04.2006, no Service Tax can be levied invoking Section 66A if the services are rendered, performed or delivered abroad though consumed in India because consumption of services is not a taxable event but performance are rendering of services in India is relevant. They relied upon the following cases: (i). CST Vs Oil and Natural Gas Corporation Ltd., 2017 (6) GSTL 53 (Tri.). (ii). Stone Webster International Inc. Vs. CCE, 2011 (22) STR 467 (Tri.). (iii). K.G. Denim Vs CST, 2015 (37) STR 616 (Tri.). (iv). Skipper Electrical India Ltd Vs CCE 2017 (52) STR 137 (Tri.). (v). Genom Biotech Pvt. Ltd. Vs CCE, 2016 (42) STR 918 (Tri.). 2.3. The appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot to be taxed are not acceptable and the case law cited is also not applicable. They are not applicable to services like BAS which are not covered by Rule 3(ii) of Taxation of Services (Provided from outside India and received in India). BAS is covered by Rule 3(iii) which excludes services covered by Rule 3(i) and 3(ii) ibid and sub clause (zzzo) (zzzv) of Section 65(105) and hence services received by a recipient located in India for use in relation to Business or Commerce would be taxable. 3.3. He relied upon the decision of the Tribunal in the case of Air India Ltd., 2018 (8) GSTL 386 (Tri. Del.) wherein it was held that the appellant is liable to pay Service Tax for the services, for which they are the recipient even when such services have been received by them outside India as per the provisions of Section 66A of Finance Act, 1994 under the Reverse Charge Mechanism read with Taxation of Services (Provided From Outside India And Received In India) Rules, 2006. These Rules have been framed in exercise of the powers conferred by Sections 93 and 94, read with Section 66A of the Finance Act, 1994. In the present case, there is no dispute that the appellant is located in In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question remains to see whether the requisition received by the appellants after 18.04.2006 are taxable to Service Tax. As regards the contentions of the appellants that relevant Section or Rules are not quoted in the SCN, we are inclined to go by the submissions of the AR that as far as the contentions are clear wrong quoting, mis-quoting or non-quoting of Sections and Rules does not vitiate the proceedings, in view of the ratio of decisions quoted by him (Supra). 5.1. The Departmental Representative has relied upon the case of Air India (Supra) wherein it was held that those services are rendered by provider who is situated outside India and the services that rendered in a place outside India such services are taxable under reverse charge mechanism as long as the beneficiary is in India. In the instant case also, the appellants are in India but the services are rendered by the company which is outside India and the services are also rendered outside India, however, it is not denying that the appellants are receivers and beneficiaries of the services rendered abroad. We hold that the ratio of the above case is squarely applicable. Therefore, we find that the demand needs to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax providers and whether they are availing facility under CENVAT Credit Rules and are following proper procedure. Under the circumstances, we hold that the appellants are liable to pay the Service Tax for the period from 18.04.2006 to 31.12.2006. If the appellants are otherwise liable to take credit of the same and to obtain a refund of the same cannot be decided at this end for the reasons cited above. We find that eligibility to credit and refund thereof is governed by a separate set of Rules and are subject to following the procedures laid down thereof. Having observed that service tax is payable by the appellants for the period 18.4.2006 to 31.12.2006, we hold that once the duty is paid, the issue of refund would be, subject to the relevant provisions of law and procedures, be decided by the jurisdictional authorities. As no refund claim is filed, the issue cannot be decided at this stage. For this reason the issue needs to go back to the original authority. 6. In view of the above, we allow the appeal by the way of remand and we direct the lower authorities to quantify the Service Tax and penalty payable by the appellants for the period from 18.04.2006 to 31.12.2006. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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