TMI Blog2023 (1) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... emand for re-quantification of the demand after allowing the abatement. So far the adjustment of tax is concerned, the order is modified to the extent that the appellant shall be entitled for cenvat credit as well as cash. The Adjudicating Authority shall verify the payments made through invoices by the appellant and allow the credit after verifying the same. Disallowance of Rs.12,27,087/- - amount relates to import of package software, which are goods, as defined and has been explained by the Revenue - HELD THAT:- Service tax of Rs.2,150/- in respect of receipt of package software from INVATOMARKET is not taxable being goods. Further, the services received from Cloudinary Ltd. and Amazon Web Services involving service tax of Rs.1,16,063/- and Rs.3,67,045/- are not liable to be taxed as the services have been provided in the nature of immovable property as the server has been located outside India. Accordingly, the demand of Rs.4,85,258/- being not taxable to service tax is set aside - So far the balance demand is concerned of Rs.12,27,087 4,85,769 = Rs.7,41,821/- is concerned, it is found that the appellant have maintained proper books of accounts and transactions were duly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Feb. and March, 2016 upto the period 2015-2016. However, after completion of audit, no audit note was issued. Subsequently, audit was again done in the year 2019. Thereafter, Audit Report, IAR- 106/2018-2019 dated 19.08.2019 was issued for short payment/nonpayment of service tax under RCM. After issue of the Audit Report, there was correspondence between the assessee and the Revenue and several audit paras were dropped. However, on fourth issue, the matter could not be settled and thereafter, show cause notice dated 17.10.2019 was issued relating to the period April, 2014-15 to June, 2017 demanding service tax and proposing penalty as follows:- Particulars Tax Involved Amount (Rs.) Short payment of tax under RCM for payment through Debit/Credit Card of the Director for import of services (in foreign currency) from outside India. 12,27,087/- Short payment of tax due to wrong availment of abatement under NN 26/2012-ST dated 20.06.2012 on Tour Operator Services without fulfilling conditions. 72,99,444/- Wrong availment and utilization of CENVAT Cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le with the assessee. It is also stated that the copy of the return for April, 2015 to September, 2015 was also given to the Audit party in the course of audit in the year 2019. 6. On the issue of limitation, ld. Authorised Representative for Revenue submits that the appellant cannot take advantage of the fact that the audit report was not issued for the Audit done during Feb-March, 2016. 7. As regards the demand of Rs.72,99,444/- allegedly raised for short payment of tax, due to wrong availment of abatement for Tour Operator Service, under Notification No.26/2012-ST, the ld. Commissioner (Appeals) have held that as the appellant have reversed the proportionate cenvat credit attributable to Tour Operator Service, amounting to Rs.6,33,791/-, out of total separate credit amount of Rs.9,34,836/-, accordingly, amounts to having not taken cenvat credit at all, relying on the ruling of this Tribunal in Ambassador Holidays Private Limited - 2019 (21) GSTL 460 and Sanjay Engineering Industries 2016 (43) STR 354 (Raj.). Thus, this demand was set aside. 8. Further Revenue is not in appeal against this deletion/setting aside of this demand and accordingly, the same attained finalit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to availability of the qualified software professionals at Bangalore. Further, all the accounts are maintained at the main office at Jaipur. Jaipur office disbursed all the invoices. All the receipts for the services are accounted at the Jaipur Office only. Thus, Bangalore office does not provide any service to the service receiver(s) of the appellant. Bangalore office does not have any independent existence. Further, it is explained that payment has been made to the suppliers or vendors for providing services. Further, the bill was raised by the Overseas Service providers in the name of the Director, to facilitate the payment. However, there is no dispute with regard to the receipt of the input services by the appellant company. Further, there is no dispute that it is the appellant company, which have incurred the amounts for such services by reimbursing the payment made by the Director. It is also pointed out that one of the service providers is Pay U Biz , which provides service for the payment gateway of the appellant, by which the appellant gets the payments from its customers or service receivers, through online mode, wherein the service provider (Pay U Biz) receives the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... April to September, 2015. 17. Ld. Authorised Representative relies on the findings of the Commissioner (Appeals). 18. So far this ground is concerned, I agree with the findings of the Commissioner (Appeals) that the ground has been allowed by way of remand for re-quantification of the demand after allowing the abatement. So far the adjustment of tax is concerned, I modify the order to the extent that the appellant shall be entitled for cenvat credit as well as cash. The Adjudicating Authority shall verify the payments made through invoices by the appellant and allow the credit after verifying the same. 19. So far disallowance of Rs.12,27,087/- is concerned, ld. Commissioner (Appeals) have observed that the appellant have contested the tax amount of Rs.4,85,769/- on the ground that this amount relates to import of package software, which are goods, as defined and has been explained by the Revenue. Further, urges that the Commissioner (Appeals) disallowed this amount without recording any independent finding relying on the order-in-original. 20. He further points out that in para D-5 of the order-in-original, the details are recorded as follows:- Sl. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised Representative relies on the order of the Court below holding that these are services, which have been deemed to receive in India and is rightly taxable under Service Charge Mechanism. 25. Having considered the rival contentions on this ground, I find that service tax of Rs.2,150/- in respect of receipt of package software from INVATOMARKET is not taxable being goods. Further, the services received from Cloudinary Ltd. and Amazon Web Services involving service tax of Rs.1,16,063/- and Rs.3,67,045/- are not liable to be taxed as the services have been provided in the nature of immovable property as the server has been located outside India. Accordingly, I set aside the demand of Rs.4,85,258/- being not taxable to service tax. So far the balance demand is concerned of Rs.12,27,087 4,85,769 = Rs.7,41,821/- is concerned, I find that the appellant have maintained proper books of accounts and transactions were duly reflected in books of accounts and proper vouchers were maintained. Further, situation is wholly Revenue neutral as the appellant was entitled to cenvat credit on the same. Further, admittedly, the appellant have discharged their service tax liability on the taxable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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