TMI Blog2006 (1) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... y of Consulting Engineer against the first petitioner and demanding interest as applicable for delayed payment and imposing penalty at the rate of ₹ 100/- per day for delayed payment under Section 76 of the Finance Act 1994 (for short the Act) imposing penalty of ₹ 17,32,301/- under Section 78 of the Act. 2. It is averred in the petition that second petitioner is engaged in the business of manufacturer and sale of chemical fertilizers with its factory at Panambur, Mangalore. The first petitioner is the original licensor and provider for world proven technology in the urea plant operation. From time to time the second petitioner requires advise and assistance both in running its facilities and it has entered into a few a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 161 man-days but such visits were for a invited purpose of primarily gathering data which the first petitioner was to sue in Netherlands to formulate the advice to be given it is further averred that Rule 2(1)(d)(iv) of the Service Tax Rules, 1994 that a person receiving services in India is made liable to pay the service tax in relation to any taxable service provided by a person from non-resident or is from outside India and dose not have any office in India is applicable from 16.8.2002 and first petitioner not having rendered any services in India and the presence of its representatives in India was not for rendering any services was not liable to pay any service tax and the order passed by the additional Commissioner is perverse and ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of case relating to service tax may be carried out by the jurisdictional Additional Commissioners or Deputy Commissioners of Central Excise as per Section 73 of the Act and wherefore the writ petition is filed. 7. It is clear from the perusal of the material on record that Annexure-D dated 29.12.2003 was issued on 31.12.2003 and as per the communication the preamble to the communication the petitioner could file an appeal before the Commissioner within three months from the date of the order. However the circular dated 3.3.2004 which is issued before the period prescribed for preferring the appeal was over shows that no appeal would lie and the contents of the said circular is not disputed by the respondent and wherefore it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proportionately out of the total amount of ₹ 3,46,65,972/- for the whole of the year and 5% of the said amount has been deposited as service tax proportionately and the Additional Commissioner has not at all considered the said contention though has observed that major part of the service was rendered from outside India. The specific contention that the petitioners would be liable to pay service tax only in respect of service rendered in India 161 days even assuming that the service rendered by the first petitioner is that of Consulting Engineer is liable to pay service tax has not been considered. 9. On the other hand the learned Additional Solicitor General appearing for the respondents submitted that the Additional Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner were present in India only for 161 days and the has been paid proportionately in respect of said period of 161 days and the first petitioner is not liable to pay the tax beyond 161 days for not having rendered service in India under the existing rule has not been considered by the Additional Commissioner and on the other hand what is stated by the additional Commissioner in his order is that the major portion of the service is rendered outside India as referred to the agreement entered into between the first petitioner and the second petitioner the Additional Commissioner has failed to note that question of payment of amount by the second petitioner would arise only if the first petitioner is liable to pay service tax as per the ag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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