TMI Blog2023 (12) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... diagnostic / medical screening tests. The Service Tax liability was computed on this US$ 30 which is the fees collected by the appellant for biometric registration of the candidates on FWCMS. The appellant acted as an agent of the Bestinet in collecting the fees of US$ 30 which was paid on periodical basis to M/s. Bestinet. The invoices raised by the appellant did not indicate collection of any other amount over and above US$ 30 payable by each foreign worker. In view of the above findings, the nature of services rendered by the appellant were in the nature of a pure agent as far as the fees for biometric registration is concerned. The amount alleged to have been collected by the appellant over and above US$ 30 is only towards screening test conducted by the appellant which was already held to be exempt in the impugned Order-in-Original dated 30.06.2021 under Notification No. 25/2012-ST dated 20.06.2012. As such, the demand of Rs.36,36,856/- collected by the appellant as fees for biometric registration of foreign workers who are the ultimate service recipients and which was paid to M/s. Bestinet, cannot be sustained. As the appellant succeeds on merits there is no need to dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered from abroad. The Appellant failed to get themselves registered with the department and failed to file the statutory ST-3 returns for the period April 2014 to June 2017. 2.3 A Show Cause Notice dated 30.11.2019 was issued to the Appellant by DGGI proposing to treat the services received from M/s. Bestinet, Malaysia as import of service and consequently proposed to demand Service Tax of Rs.36,36,856/- under reverse charge basis and proposed to demand Service Tax of Rs.1,60,58,278/- towards consideration received for screening tests under proviso to Section 73(1) of Finance Act,1994. Vide Order-in-Original No.24/2021 dated 30.06.2021, the Adjudicating Authority held that the services received from M/s. Bestinet, Malaysia is import of service and confirmed the demand of Service Tax of Rs.36,36,856/- on reverse charge basis and imposed equal penalty under Section 78(1) and Rs.10,000/- under Section 77(1) of the Finance Act,1994 but dropped the demand of Rs.1,60,58,278/- on the consideration received towards screening tests holding that the services are covered under exemption Notification No. 25/2012-ST dated 20.06.2012. 3. Aggrieved, the present appeal has been filed before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n before they visit the medical centre. 4.5 It was contended that the impugned Order-in-Appeal had already erred in its conclusion that the appellant is collecting over and above the reimbursement amount of $30 which is factually incorrect and inconsistent with the observations in the impugned order. It is pertinent to note that the Appellant providing diagnostic service collects fees in relation to the said service along with $30 which it collects as pure agent with respect to the bio-medical registration on behalf of BESTINET which are distinctly mentioned in the invoice/ receipt. The impugned order affirmed that the Indian Worker pays $30 to Bestinet as indicated in the invoice issued by the Appellant to the service recipient and the Indian Worker is aware of the same which unequivocally confirmed that the $30 is distinctly captured in the invoice thereby establishing that the collection of fees related to diagnostic service is not in addition to this amount. Thus, the fees collected for the diagnostic services cannot be clubbed to conclude that the Appellant is collecting bio-medical registration amounts over and above the $30. Hence the conclusion that the Appellant is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard, further reliance was placed on (i) Collector of Central Excise Vs. H.M.M Ltd. [2002-TIOL-120-SC-CX] (ii) Sanjay Industrial Corporation Vs. Officer of Central Excise, Mumbai [2015-TIOL-17-SC-CX] (iii) Bharat Hotels Ltd. Vs. Officer of Central Excise [2018-TIOL-178-HC-Del-ST] (iv) Apex Electricals (P) Ltd. Vs. Union of India [1992 (61) ELT 413 (Guj.)] (v) British Airways Vs. Officer (Adjn.), Central Excise, Delhi [2014-TIOL-979-CESTAT-Del.] 4.6.3 In this regard, it was further pointed out that there cannot be suppression in case where the company has not disclosed information in the ST returns which the company is not legally required to and thereby invocation of extended period of limitation on this ground is improper and liable to be set aside. Reliance in this regard was placed on the decision of Balsara Extrusions Pvt. Ltd. Vs. Commissioner of Central Excise [2001 (131) ELT 586 (Tri.-Mum.)] and Apex Electricals Pvt. Ltd. Vs. Union of India [1992 (61) ELT 413 (Guj.)]. Further, it was stressed that the burden of proof that the Appellant had mala-fide intention rests with the authority and in this regard reliance was placed on (i) Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded that where the issue involved interpretation of law, extended period of limitation cannot be invoked and in this regard, reliance was placed on the following judicial pronouncements: EID Parry (I) Ltd. Vs. ACT [1999-VIL-01-SC] CST Vs. Vijay Television (P) Ltd. [2015 (40) STR 671 (Mad.)] CCE Vs. Gujarat Intelligence Security (India) [2011 (24) STR 167 (Guj.)] Polyspin Limited Vs. CC [2007 (214) ELT 347 (Tri.-Chennai)] Larsen Toubro Limited Vs. CCE [2015 (317) ELT 346 (Tri.-Chennai)] ITC Limited Vs. CCE [2012 (285) ELT 292 (Tri.-Chennai)] K.K Appachan Vs. CCE [2007 (7) STR (230) (CESTAT-Bang.)] CST Vs. Deutsche Asset Management (i) Private Limited [2016-VIL-203-CESTAT-Mum-ST] PT-Education Training Service Limited Vs. CCE [2009-TIOL-110-CESTAT-Del] Sujana Metal Products Limited Vs. CCE [2011 (273) ELT 112 (Tri.-Bang.)] Sri Shakti LPG Limited Vs. CC, CE ST [2005 (187) ELT 487 (Tri.-Bang.)] In the light of the above, it was argued that the invocation of extended period was liable to be set aside. 5. The Ld. Authorised representative Shri N. Satyanarayanan representing the department reiterated the findings of the lower Adjudicating Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order. I find that the appellant is charging Rs.2,000/- per candidate inclusive of fees of US$ 30 payable by the appellant to the Bestinet. The Show Cause Notice proposed to demand Service Tax on this entire amount of Rs.2,000/- received from each candidate. There is no break-up of which amount is received for medical tests and what amount is towards capturing of biometric details. At Paragraph 12.17 of the Order-in-Original dated 30.06.2021 by the Additional Commissioner, it was recorded that the appellant have not collected any amount exclusively for biometric registration of candidates and biometric registration is an integral part of the medical test process and the entire fees collected only towards medical test services. The appellant has also submitted a Certificate dated 08.06.2021 issued by a Chartered Accountant to the effect that the appellant has not collected any amount exclusively for biometric registration of candidates. There is also no allegation in the Show Cause Notice that the appellant has charged or collected any amount from the prospective candidates on account of the biometric registration by the appellant. All the charges towards medical tests are e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tration which has been paid to M/s. Bestinet in terms of the agreement entered into with them there is no additional consideration received by the appellant for provision of this service of biometric registration. 13. The Ld. Consultant for the appellant has argued that if M/s. Bestinet is treated as the service provider both by the lower adjudicating authorities and as the service is provided from a non-taxable territory, the appellant not being a service recipient is exempted under Serial No. 34 of Notification No. 25/2012 which states that services received from a provider of service located in a non-taxable territory are exempted. Even his other contention that Service Tax liability under Reverse Charge Mechanism under Notification No. 30/2012 dated 20.06.2012 in respect of import of services is only on the service receiver and the appellant not being a service recipient but the foreign workers no Service Tax liability can be fastened to the appellant on Reverse Charge Mechanism basis. 14. To sum up, the appellant was collecting Rs.2000/- for each prospective employee who are the service receivers which is inclusive of US$ 30 which is paid to M/s. Bestinet upon raising of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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