TMI Blog2023 (6) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... dia. In the result, we do not find any grounds to interfere with the impugned order passed by the original authority. Impugned order is sustained. Appeal filed by department is dismissed. - SERVICE TAX MISCELLANEOUS APPLICATION (CT) No. 40062 of 2023 & SERVICE TAX APPEAL No. 40378 of 2013 - FINAL ORDER NO. 40346/2023 - Dated:- 26-5-2023 - HON BLE MS. SULEKHA BEEVI C.S., MEMBER ( JUDICIAL ) And HON BLE MR. M. AJIT KUMAR , MEMBER ( TECHNICAL ) For the Appellant : Ms. Sridevi Taritla , ADC ( A.R ) For the Respondent : Mr. Ramnath Prabhu , Advocate ORDER Order : [ Per Hon ble Ms. Sulekha Beevi C. S. ] 1. The issue is whether appellant is liable to pay service tax under Banking and Other Financial Services on the fees paid to foreign banks for the External Commercial borrowings under the Reverse Charge mechanism. 2. Brief facts are that the appellants hold Service Tax Registration and are also manufacturers of Copper Anode, Sulphuric Acid and Phosphoric Acid. They were availing the credit of duty paid on inputs, service tax paid on input services and also duty paid on capital goods. They were providing taxable services under Construction Engineering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow before the Tribunal. 5. Ld. A.R Ms. Sridevi Taritla appeared and argued for the department. It is submitted that though the demand raised in the show cause notice was for Rs.3,97,30,969/- the appeal is filed by the department only for an amount of Rs.51,75,233/-. The Commissioner has dropped the entire demand by observing in para-15 that majority of the banks/financial institutions do not have permanent establishment in India. It is submitted by the Ld. AR that with regard to certain transaction amounts, the respondents have not been able to adduce evidence that the said financial institutions have a permanent establishment in India. The details furnished in the grounds of appeal with regard to amounts of service tax of Rs.51,75,233/- are as below : Sl.No. Date Amount paid in Rs. Nature of payment ST Payable Rs. 2005-06 1 03.06.2005 655950 Agency Fee 2 05.07.2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 30.09.2009 6652855 Provision 9506035 979121 B - Total ST payable 979121 Grand Total ST payable (A+B) 5175233 6. It is argued by the Ld. A.R that the Commissioner ought not to have dropped the entire demand and should have confirmed the demand of Rs.51,75,233/- as the respondents had not furnished evidence with regard to these payments as to whether the foreign service provider had office in India. She prayed that the appeal may be allowed. 7. Ld. Advocate Shri Ramnath Prabhu appeared for the respondents. The detailed break up in respect of the figures shown in the table in the Revenue s grounds of appeal was provided by the Ld. Counsel. The break up details as to why such figures are not subject to levy of service tax is explained as under : 2005-06 Sl. No Year Amount ST Payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,035/- 9,79,121/- Grand Total 4,63,15,100/- 51,75,233/- 8. Ld. Counsel submitted that the onus is on the department to prove as to whether there is short levy and the same cannot be shifted on the respondent. It is the burden of the department to establish that the banks with regard to the amount of Rs.51,75,233/- does not have permanent establishment in India. The Commissioner has examined all the transactions and dropped the entire demand. The impugned order was adverted by the Ld. Counsel to argue that the Commissioner has gone through the details furnished by the respondent. The details furnished would demonstrate that all the banks and financial institutions have permanent establishment in India and accordingly they had discharged service tax on such amounts. 9. The larger period of 5 years has been invoked in the present case alleging suppression of facts. The entire situation is revenue-neutral in as much as after payment of service tax under the reverse charge mechanism by the respondent, they would be eligible for credit. Further, there is no positive ..... X X X X Extracts X X X X X X X X Extracts X X X X
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