TMI Blog2024 (1) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... k as Cenvat credit. Thus there was no gain to the government exchequer in that case. It is a case of revenue neutrality. The issue of the applicability of revenue neutrality in the circumstances of charging service tax under reverse charge mechanism has been settled in catena of judgments - In the case of Jain Irrigation System Ltd. [ 2015 (9) TMI 160 - CESTAT MUMBAI ] the Tribunal holds that revenue neutral situation comes about when credit is available to assessee himself. In the case of Coca-Cola India Pvt. Ltd. [ 2007 (4) TMI 17 - SUPREME COURT ] the Apex Court accepted the stand that the duty payable in respect of beverage basis/concentrates is modvatable. Since the duty payable is modvatable, there is no revenue implication. By applying ratio of above decisions, it is found that the present case is a revenue neutrality case and as such no demand is sustainable. Interest and penalty - HELD THAT:- The issue is no more res integra. Once demand is not sustainable, interest and penalty under Section 78 of the Finance Act, 1994 would not be imposable. When demand is not sustainable on the ground of revenue neutrality, it is not essential to consider other issues raised b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on purchase of license. Further, the Appellant had purchased professional services from M/s Advent Software Services Inc. against payment determined on annual basis. The Appellant had shown income on account of notice pay recovery recovered from the employees for non observance of notice period. The Appellant had incurred expenses of Rs.7,07,70,819/- for procuring rent-a-cab operator service from proprietorship concerns, Rs.15,45,000/- for procuring legal service from Advocates, Rs.2,46,15,791/- towards purchase of cloud services from M/s Amazon Web Services Inc. located in non-taxable territory, Rs.45,74,455/- for purchase of professional services from Advent Software located in non-taxable territory and had shown income of Rs.90,93,954/- as recovery from the employees for not observing notice pay period and accordingly the Appellant had not paid/short paid service tax amounting to Rs.91,46,357/- involved on legal consultancy service, rent-a-cab operator service, cloud services, software license and notice pay recovery for the period April 2013 to June 2017. 3. In view of the above facts, Show Cause No.08/Addl. Commr/Audit/Noida/2018-19 dated 23/10/2018 was issued to the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ola India Pvt. Ltd., 2007 (213) ELT 490 (SC) and CCE, Vadodara Vs Narmada Chematur Pharmaceuticals Ltd., 2005 (179) ELT 276 (SC) , has held that if there is no revenue implication involved, then no tax is required to be paid. It has been further held that, if for the same assessee, tax paid is modavable/cenvatable, then no tax is required to be paid. 5. The Ld. Counsel for the Appellant further submitted that it is an admitted fact that w.e.f 01/12/2016, the Appellant duly deposited the service tax under reverse charge mechanism on the value of the cloud services received by them from M/s Amazon Web Services INC. located in non-taxable territory. For the period prior to 01/12/2016, the cloud services were included in the definition of Online information and database access or retrieval services . The place of supply of cloud service for the period prior to 1/12/2016 was the location of the service provider as per rule 2(l)(b) of the Place of Provisions of Services Rules,2012. It was pleaded that the Cloud storage services may be accessed through a collocated cloud computing service, a web service application programming interface (API) or by applications that utilize the API ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. With comprehensive instrument coverage from global equities and fixed income to derivatives and bank debt Geneva supports even the most complex global strategies, without the need for offline workarounds. Connect your front, middle, and back offices on a single, scalable platform. It thus appears that the product Geneva connects the front, middle and back offices on a single scalable platform and provides data or information to license user. In terms of rule 2(l) of the Place of Provision of Services Rules, 2012, as it existed during 01.07.2012 to 30.11.2016, the definition of online information and database access or retrieval services was providing data or information, retrievable or otherwise, to any person, in electronic form through a computer network. From the definition of online information and database access or retrieval services it is clear that the data or information had to be provided in electronic form through a computer network and this data or information might be retrievable or otherwise. Since the online information and database access or retrieval services was exempt from payment of service tax upto 30.11.2016 in terms of Rule 9 of the Place of Provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that as the appellant could have availed CENVAT credit of the service tax paid on reverse charge mechanism, hence a revenue neutral situation arises wherein appellant pays the tax and takes the credit and accordingly set aside the tax demand interest thereon and penalties. In the case of Jain Irrigation System Ltd. [2015 (40) S.T.R. 572 (T)] the Tribunal holds that revenue neutral situation comes about when credit is available to assessee himself. In the case of Coca-Cola India Pvt. Ltd. [2007 (213) E.L.T. 490 (S.C.)] the Apex Court accepted the stand that the duty payable in respect of beverage basis/concentrates is modvatable. Since the duty payable is modvatable, there is no revenue implication. By applying ratio of above decisions, we find that the present case is a revenue neutrality case and as such no demand is sustainable. 10. As regards interest and penalty we find that the issue is no more res integra. Once demand is not sustainable, interest and penalty under Section 78 of the Finance Act, 1994 would not be imposable. In support of above, reference is made to the following decisions :- (1) CCE, Pune Vs. Coca-Cola India Pvt. Ltd., 2007 (213) E.L.T. 490 (S.C.) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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