2010 (1) TMI 130

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.... 3.1 The relevant background facts are that the respondents were issued with a show cause notice dated 10.102003 proposing service tax under the Head 'Consulting Engineering Service' in respect of services received by them from Overseas Company and by order dated 31.5.05, the original authority confirmed the demand of service tax along with interest and imposed penalty under various Sections. On appeal by the party, the Commissioner (Appeals) vide order dated 17.1.2006 set aside the order of the original authority and the said order of Commissioner (Appeals) has been upheld by the Tribunal vide order dated 10.1.2008 thus rejecting appeal by the Department against the order of the Commissioner (Appeals). 3.2 In the meanwhile, the respond....

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....the issue of show cause notice under intimation to the Department. As they are recipients, the question of passing on the burden does not arise. He also submits that the Commissioner (Appeals) has relied upon the decision of the Tribunal in the case of Hexacom (I) Ltd. vs. C.C.E., Jaipur, 2003 (156) ELT 357 and the grounds of appeal by the Department does not disclose that the said order has been challenged by them. He also draws my attention to the fact that before the original authority they have also submitted, as additional evidence, certificate of Chartered Accountant dated 19.9.06 to show that burden of service tax has not been passed on to the consumer. Under these circumstances, he seeks upholding the order of the Commissioner (Appe....

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....al know-how paid by the appellants form foreign firm being intellectual property and service tax was paid by the appellants from their own pocket and collected by the Revenue without the authority of law and the principle laid down by the Hon'ble Tribunal in the case of Hexacom (I) Ltd. vs. C.C.E., Jaipur, 2003 (156) ELT 357 (Tri.-Del.) is squarely applicable to the instant case. 6.2 I find that during the relevant period the respondents were not required to pay service tax as recipient. Their Chartered Accountant's certificate additionally supports their case that the burden of service tax has not been passed on. The Tribunal's decision in the case of Hexacom (I) Ltd. is also in support of the submission on behalf of the respondent. The....