TMI Blog2023 (10) TMI 811X X X X Extracts X X X X X X X X Extracts X X X X ..... f the calculation sheet and the submission advanced by the learned Counsel for the appellant, it cannot be doubted that the amount was in JPY which was converted into Indian Rupees. There would, therefore be no shortfall. The finding to the contrary recorded by the Commissioner, therefore, be sustained. Though detailed submissions have been advanced by learned counsel for the appellant for contending that service tax was not leviable and by the learned authorized representative appearing for the department that service tax would be leviable, it will not be appropriate to examine this issue in the first instance. This issue should be first examined by the Adjudicating Authority. As the records indicate, the appellant had not contested this matter. It would, therefore, be appropriate to provide an opportunity to the appellant to submit submissions regarding this issue to the adjudicating authority and the department should also be provided an opportunity to respond to the same. It is after the examination of the submissions made by the appellant and the department that the Adjudicating Authority should take a considered decision on this aspect. The matter is remitted to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offices of Japan Airlines and makes payment for the services in their respective currency. According to the appellant, in such situations, it does not have any role to play in the transaction between the passenger and the foreign office of Japan Airlines. 5. In 2009, and audit of the appellant was conducted by the service tax authority with respect to the bookings of tickets from abroad for journey starting from India. Initially, in response to the notices issued by the department, the appellant stated that it would not be possible for it to supply information as it was not possessed of such information. 6. A letter was subsequently sent to the Chief Commissioner of Central Excise and Service Tax, Delhi regarding payment of service tax of Rs. 7,48,95,740/- (which shall hereinafter be referred to as Rs. 7.48 crores) with interest of Rs. 3,70,06,810/- towards service tax for the period 1.02.2010 to 31.01.2015. The appellant contended that the service tax was initially not paid as they were under a mistaken belief that it was not payable, but the service tax was subsequently paid. 7. Another letter dated 4.06.2015 was sent to the Revenue Secretary again pointing out that an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /Ing./110/2010 dated 16.06.2011(RUD-VI) and was requested to, inter-alia, furnish details of ticket booked from abroad for journey starting from India w.e.f. 01.05.2006. The party vide their letter dated 22.06.2011 (RUD-VII) replied that they did not have the information as specified in the department's letter and did not maintain the records in the manner prescribed by the department. 9. Whereas the party vide letter dated 03.06.2015 (RUD-IX) informed the department, which is reproduced as under: We are a foreign company based at Japan. We have been taking advice from Sh. J. K. Mittal, Advocate who advised that the Service Tax was payable for the tickets issued from outside India but passengers embarks on journey from India, therefore, Service Tax for the period 1st Feb, 2010 to 31st Jan, 2015 was not paid which comes out to Rs. 7,48,95,740/-, which we could not have paid under mistake of law. Hence, the aforesaid Service Tax amount of Rs. 7,48,95,740/- along with interest of Rs. 3,70,06,810/-(interest computed upto 04.06.2015) has been paid by us on 03.06.2015. 10. The party vide the above said letter dated 03.06.2015 (RUD-IX to SC) addressed to The Chief Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also denied the allegation that they had not provided the information to Audit branch of Commissionerate of Service Tax. 13 . It is however noticed that the said deposited amount of Rs. 10.89 crores intimated to the Hon'ble Revenue Secretary does not match with their earlier intimation under RUD XI that they had deposited an amount of Rs. 11.19 crores as informed vide letter dated 03.06.2015. It therefore appears from above that: (i) Party had been taking a plea during the investigation from 2009 onwards that despite their best effort to get the requested details from their Delhi and Tokyo office, they were unable to retrieve details of tickets booked from abroad and that the information is simply not available with them. (ii) the party themselves do not seem to be sure about the quantum of their Service Tax liability on air tickets booked from abroad for passengers embarking from India from 1st February, 2010 till 31st March, 2015 as to whether it is Rs 11.29 Cr or Rs 10.89 Cr. (iii) It is further noticed from the calculation sheet provided to Range Office that the party has shown Rs. 13,93,06,059/- as IN Tax collected outside India for the period from Febru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings para, the Department by treating/ reading its own JPY as Rs. , without giving any reasons, as discussed in preceding paras, has created this short payments, whereas there is no such short payments.) Thus, the Department themselves is making out case, whereas there is no case, in fact the Department never even sought any clarification, even if there was in their mind, whereas the Noticee as mentioned in A.2 supra, already submitted full details to the Superintendent by letter dated 23.06.2015. Thus, there is no doubt and confusion, in fact if the Department had this confusion they could have raised question to the Noticee, never did it. It appears that the Department has acted unfairly to unnecessary put the Notice into litigations. (emphasis supplied) 11. By the order dated 12.01.2018, the Commissioner confirmed the demand after excluding an amount of Rs. 19,28,182/- which was for the period beyond five years. The relevant portion of the order passed by the Commissioner is reproduced below: 35.2 The gist of the contention is that they paid Service Tax to the tune of Rs.7,48.95,740/- appropriately on the value of taxable services as conveyed by them vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sheet of the Noticee Company in the appropriate currency. Hence, I am constrained to accept the version of the allegations in the Show Cause Notice, especially, in the absence of proper explanation by the Noticee as to how they arrived at the said figures in JPY, inspite of being given a chance to explain their stand no explanation is forthcoming so the onus to prove their innocence has not been discharged. 35.4 I also find that the said contention itself indicates that the Noticee had admitted that they had collected tax on the impugned taxable services but never paid to the credit of government account on own volition after 5 years of leviability of taxation, albeit the Department had continuously and consistently been asking them to provide the value of taxable services and the payment of Service Tax and cess as applicable on the said values. On the contrary, the Noticee had merely provided the said amount without providing the details regarding as to the corresponding values, how the same were collected from outside India, where they were collected and the type of foreign exchange involved therein while collecting such values and tax across the world. It is also evident by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the stand of the department regarding short payment of service tax. 14. The submissions advanced by the learned counsel for the appellant and the learned authorized representative appearing for the department have been considered. 15. The first issue that arises for consideration is whether the allegation contained in the show cause notice that there was a shortfall in payment of service tax is correct or not. 16. As noticed above, the show cause notice refers to a letter dated 03.06.2015 sent to the Chief Commissioner of Central Excise and Service Tax, Delhi wherein the appellant intimated payment of service tax of Rs. 7.48 crores /- with interest of Rs. 3,70,06,810 (total Rs. 11.19 crores), as also the letter dated 04.09.2015 sent to the Revenue Secretary in the Ministry of Finance, wherein though the subject relates to deposit of service tax of Rs. 11.19 crores, but in the body of the letter it refers to an amount as 10.89 crores. It is for this reason that the department sought verification from the National Security Depository Ltd which informed that the appellant had deposited 11.19 crores. Having noticed the aforesaid facts, the show cause notice also refers to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foreign exchange currencies and therefore it is not the case that they had collected such values and taxes only in JPY. The Commissioner thereafter, noticed that in such circumstances, he was constrained to accept the version of the allegations in the show cause notice, especially in the absence of proper explanation by the appellant as to how it arrived as the said figure in JPY, in spite of being given a chance to explain this. 21. The show cause notice accepted the statement made in the calculation sheet regarding the figures and the only dispute was as to whether the amount of 13,93,06,059/- was in JPY or Rupees. The Commissioner does not doubt that this amount was in JPY and indeed he could not have in view of categorical statement in the calculation sheet that the amount was in JPY. The Commissioner however, went on to record findings on issues which were not even the subject matter of the show cause notice. The appellant was not required to explain as to how the said figures were in JPY, nor was the conversion rate in dispute. 22. In view of the categorical reply submitted by the appellant and from a perusal of the calculation sheet and the submission advanced by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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