TMI Blog2023 (11) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... ategory of Management Consultancy Services at 10%. The rate of tax is applicable on the date when the appellant was liable for pay Service tax to the department. It is clear that the rule of POT is not applicable in a case where service was provided and invoice was issued prior to introduction of Point of Taxation Rules, 2011 - the impugned order confirming the differential service tax demand in respect of Management Consultancy Service is not sustainable. Time Limitation - HELD THAT:- Admittedly the tax liability on this particular tax entry has been a subject matter of substantial litigation. At the relevant time the chargeability of service tax on renting of immovable property was sub-judice before various judicial forum - In fact, the Hon ble Delhi High Court in the case of HOME SOLUTIONS RETAILS (INDIA) LTD. VERSUS UNION OF INDIA ORS [ 2011 (9) TMI 46 - DELHI HIGH COURT] held that the activity of the rent per se cannot be subjected to Service Tax levy, whereas the activities in relation to renting are liable to Service Tax. The decision of the Delhi High Court led to legislative changes including retrospective amendment of the concerned legal provisions in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viding Renting of Immovable Property Services. Since the appellant had paid the entire amount of Service tax of Rs. 10,30,000/- along with interest of Rs. 2,03,601/- under the category of Management Consultancy Service the same was proposed for appropriation against the demand and also since the appellant had paid an amount of Rs. 11,49,789/- under the head of Renting of Immovable property services , the demand amount of Rs. 10,36,797/- proposed was to be appropriated against the paid up amount of Service tax respectively. Similarly the interest under Section 75 of the Finance Act, 1994 was also proposed on the proposed demand. Penalties under Section 76,77 78 of the Finance Act, 1994 were also proposed to be imposed. In adjudication, Ld.Additional Commissioner vide OIO dtd. 27.05.2013 confirmed the demand alongwith interest and penalties. Being aggrieved, appellant filed appeal before the Commissioner (Appeals), who vide impugned order partly allowed the appeal of appellant. He upheld the demand of differential amount of Service tax under the category of taxable services Management Consultancy Services and penalty under Section 78 of the Act confirmed by the additional Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... POT Rules. He placed reliance on the case of VigaynGurukul Vs. Commissioner of Central Excise -2012(25)STR 459 (Tri. Del) 5. He further submits that department issued show cause notice on 12.09.2012 for the period prior to 24.02.2009. The issue involved is prior to 2009 therefore , the show cause notice was required to be issued on or before 25.10.2011. Since the show cause notice has been issued after 25.10.2011, the show cause notice itself is bad in law. Even though the appellant raised the issue of limitation in the appeal, Ld. Commissioner (Appeals) did not give any finding on the limitation. Burden lies upon the revenue to prove that there was suppression of facts or wilful mis-statement with intent to evade service tax. The Appellant disclosed the value of Service tax in ST-3 return filed during the disputed period. The Appellant paid service tax @10% on bonafide belief that rate of tax as applicable on date of invoice is leviable in view of decision of VigyanGurkul Vs. CCE- 2012(25)STR 459 (Tri.-Del) Supra. 6. He also argued that the appellant did not pay service tax on godown provided to AWL on rent during the period 2009-10 to 2010-11. The show cause notice for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contra, Shri R. Nathan, Learned Assistant Commissioner (AR) supported the findings of Adjudicating authority. 11. We have considered the submissions made by both sides and perused the case records. We find that during the disputed period there is no clear provision in Finance Act, 1994 as to the date with reference to which rate of tax is applicable for calculating service tax. However, this lacuna was removed by Point of Taxation Rules, 2011 by Notification No. 18/2011-S.T., dated 1-3-11 which was further amended by Notification 25/2011-S.T., dated 31-3-11. However we also noticed that during the disputed period service tax is payable only when value of servicepayment is realized. In the present disputed matter the appellant raised the invoice on 30.04.2009 and payment towards the services of Management Consultancy Services was also received in July 2009 when rate of service tax was @10%, therefore in our view appellant had rightly paid the service tax under the category of Management Consultancy Services at 10%. The rate of tax is applicable on the date when the appellant was liable for pay Service tax to the department. 12. We also find that provisions in Rule 4(b)(ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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