TMI Blog2019 (7) TMI 1352X X X X Extracts X X X X X X X X Extracts X X X X ..... but rather observed that the appellants have not filed documents to justify their claim - Further, in the additional submissions filed before the Commissioner (Appeals), the appellants have filed all the documents but the same has also not been considered. Also it is found that on account of the mistakes, the appellants have short paid the service tax but the mistake was rectified and short payments were made good but there is no finding in the impugned order regarding the short payments made by the appellant - Further the principles of neutrality has also not been considered by the Commissioner (Appeals). Since most of the submissions made by the appellants along with the documents filed by the appellant have not been considered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 1,77,40,905/- Penalty ₹ 10,000/- u/s 77 Penalty ₹ 1,77,40,905/- u/s 78 2.2. The appellant had entered into an agreement with M/s. Tishman Speyer Properties L.P., New York for supply of the technical knowledge, skill, process and other assistance to them in respect of analyzing real estate development, execution and property management. As consideration for the said services received by them, the appellant shall pay to M/s. Tishman Speyer properties L.P., New Yor a service free based on the cost incurred by them towards (i) the time spent by various M/s. Tishman Speyer Properties I.P., New York, personnel, (ii) all out pocket expenses incurred by them including b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as ₹ 8,67,366/- (BED) and ₹ 25,932/- (CESS) but ₹ 9,33,424/- (BED) and ₹ 27,913/- (Cess) was shown as Opening Balance for the month of April 2009. Therefore the appellant have wrongly availed the CENVAT credit to the tune of ₹ 68,039/-. During the scrutiny of sales invoice and debit notes, it was observed that the appellant have raised the service tax and cess through debit notes during March 2008 and the same was not paid to the government account. The said amount works out to ₹ 98,519/-. 2.4. On the above allegations, a show-cause notice dt. 22/10/2010 was issued to the appellant demanding the above amounts along with appropriate interest under Section 75 and also proposed penalty under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellants have received management of Business Consultant Service but neither in the show-cause notice nor the original order explains as to how the appellants have received Management or Business Consultant Service. He further submitted that the appellant in fact have not received any Management or Business Consultant Service and as per the terms of the agreement between the appellant and Tishman, USA, an employee of the Tishman USA was assigned to the appellant on deputation and the said employee upon deputation was to work under full time employment of the appellant. Further under the said agreement, the appellants reimbursed the amounts paid to the employee of Tishman USA in foreign currency. From this arrangement, at best, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s crucial submission which formed part of the grounds of appeal and the additional submission filed before the learned Commissioner(Appeals). he further submitted that the Commissioner(Appeals) in the impugned order has wrongly observed that the appellants have not submitted the documents in support of their submissions which is factually incorrect whereas the appellants have submitted all relevant documents but the same were not considered by the Commissioner(Appeals) at all. It is his further submission that the show-cause notice while calculating the value of service tax for the payment of service tax also included foreign travel and membership fees. The learned counsel submitted that travel expenses incurred by the appellant are towards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) ELT 276 (SC)] 5. On the other hand, the learned AR defended the impugned order and submitted that the appellant failed to produce all the documents before the Commissioner(Appeals) to justify their defence and in the absence of proper documents, the Commissioner(Appeals) has rightly upheld the Order-in-Original. 6. After considering the submissions of both sides and perusal of the records, we find that the appellant while filing the appeal before the Commissioner(Appeals) has annexed documents in support of their submission i.e. ST-3 returns, summary of service tax paid towards alleged import of service, statement of expenditure incurred in foreign currency and also the case laws relied upon by the appellant, but ..... X X X X Extracts X X X X X X X X Extracts X X X X
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