TMI Blog2023 (1) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... r the purpose of clearance of finished goods and the admissibility of cenvat credit on such service tax depends on many factors. In this circumstance the argument of revenue neutrality does not survive - the order confirming demand on service tax on GTA services is set aside and the matter is remanded back to the Original Adjudicating Authority to decide a fresh. The doubt raised on the CA certificate may be highlighted and if the necessary supporting need document can be called. Demand of service tax has been made under the category of Business Auxiliary service on the commission received by the appellant - HELD THAT:- The demand has been made without examining the nature of commission received. The show cause notice does not mention the nature of the commission received by the appellant. The SCN merely picks up the head of commission in the balance sheet and compares it with the ST- 3 return. The Order-In Original also makes the vague reference to commission received in respect of repairs and attending to customers complaints. It is not understood how the services would become taxable under the business auxiliary service. The appellant has also not produced any documents to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the demand is based on the assumption and presumptions. He also pointed out that they have submitted reconciliation in the shape of a certificate of chartered accountant which has been summarily rejected. Learned counsel also pointed out that demand has also been made in respect of amount reflected in the Balance Sheet for which no payment had been made at the material time. He pointed out that the service tax liability arises only at the time of receipt of payment. He further pointed out that in para 8.1.4 the adjudicating authority has admitted that part of the liability would arise after 31.03.2008 but has confirmed the demand stating that no evidence of payment of service tax for the period after 31.03.2008 has been made by the appellant. Learned counsel also pointed out that the issue is revenue neutral as the appellant would be entitled to cenvat credit of the duty service tax paid. 3.1 Learned AR relies on the impugned order. He pointed out that no evidence of payment of service tax on GTA service has been produced by the appellant. 3.2 On the issue of the demand of service tax on the GTA service, it is noticed that the demand has been made on the basis of difference b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.04.2004. Learned counsel pointed out that the exemption under Notification No. 13/03- ST dated 20.06.2003 has been denied by the Adjudicating Authority wrongly. He relied on the following decisions:- CS T vs. Somani Exports - 2009 (13) STR 562 (Tri. Ahmd) Brindoo Sales Ltd vs. CST - 2015 (40) STR 986 (Tri. Del) 4.1 Learned AR pointed out that the impugned order in para 8.9 clearly states that suitable deduction for the exempted service has already been given and already these services not covered has been confirmed. He argued that the amount of Rs 1,11,32,454/- is the amount of commission received in respect of services and not in respect of goods. He argued that the benefit of exemption on services provided in respect of goods has already been extended in Annexure B to the show cause notice. Learned AR also submitted that the services provided by them is not merely in respect of sales of goods but attending to the customers complaints also. 4.2 On the second issue regarding demand of service tax on the sales commission and denial of Notification 13/03 ST dated 20.06.2003 it is noticed that the benefit of exemption notification has been extended in the show ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.1 Learned counsel pointed out that at the time of issue of debit notes the service provider namely M/s Gupta Metallics and Power Ltd and M/s Dhariwal Doshi Industries Pvt Ltd had mentioned their service tax registration obtain for GTA service. However, while at the time of payment of service tax to the government treasury the registration certificate was amended by the said service provider. He pointed out that the said issue has been examined by the Tribunal in the following cases:- Sanghi Industries Ltd Vs. CCE 2009 (14) STR 462 (Tri. Ahmd) Imagination Technologies India P. Ltd Vs. CCE 2011 (23) STR 661 (Tri. Mum) Secure Meters Ltd Vs. CCE 2010 (18) STR 490 (Tri.- Del) 5.2 Learned AR relies on the impugned order. He also submitted a copy of letter dated 21.01.2013 which relates to the verification conducted by revenue in respect of such debit notes. The said report indicates that no debit notes were issued by M/s Gupta Metallics and Power Ltd and M/s Dhariwal Doshi Industries Pvt Ltd during 2006 -2007and the same were fake. However, 4 debit note issued by M/s Dhariwal Doshi Industries Pvt Ltd in the year 2007 -2008 were found to be genuine. Similarl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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