TMI Blog2018 (9) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... lear that mandatory requirement for service tax that is of existence of two different entities is absolutely missing in the case in hand. Hence the transaction between the two cannot be termed as provision of service and hence no service tax is payable - Once this is the situation Section 67 of the Act has no applicability nor will be relevant the explanation in sub section 4 thereof. The adjudicating authority below has wrongly relied upon the concept of book adjustment which is relevant only when the event is taxable. Extended period of limitation - Held that:- Once no taxability is involved question of evasion of tax does not arise. The question for assessee to suppress or mis-represent the fact with the intent to evade tax also re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3. M/s. CMTS, BSNL, Jaipur has separate registration under service tax. Department alleged that since appellant is collecting monthly charges from the other Telecommunication Operators and discharging their taxability law, they are liable for discharging the same qua M/s. CMTS as well. It is alleged that appellant issue monthly debit note upon M/s. CMTS and book the amount as income in their books of account. However, appellant is not considering this amount as taxable. Resultantly show cause notice dated 20.10.2014 was served upon the appellant raising the demand along with the appropriate interest and the proportionate penalty. The said demand has confirmed by the order under challenge. 4. We have heard Mr. Sameer Aggarwal for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the book adjustment qua the transaction of taxable services with any associated enterprise are taxable. Justifying the order, ld. DR has prayed for appeal to be dismissed. 7. After hearing both the parties and observing the entire records, we observe and hold as follows: The main issue to be adjudicated is as to whether the appellant has to pay service tax on the services provided to M/s. CMST-BSNL, Jaipur which is having a separate service tax registration. Perusal of order challenge shows that the adjudicating authority has confirmed the demand by holding that the service has been provided by the appellant to its associate company i.e. M/s. CMST-BSNL and an amount is charged as shown in books of account which as per the explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the organization. The appellant has placed reliance on a decision of the Hon ble Rajasthan High Court in the case of CCE Vs. BSNL [2016 (43) STR 540 (Raj.).]. We find that the said decision is related to availment of cenvat credit transferred by the Head office to assessee on Advise of Transfer. In this case the credit has been found admissible on the ground that the assessee and the Head office fell in the same circle of BSNL. In the instant case also the appellant and the CMTS-BSNL both fall in the same circle of BSNL, hence the transaction between the two cannot be termed as provision of service and hence no service tax is payable thereon. 9. For the provision of service there has to be a service provider as well as a serv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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