TaxTMI 
TaxTMI 
2014 (11) TMI 394
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Act, 1994 to their off shore clients. In course of audit of their records, it was found that they had availed services of procuring orders and promotion of their business from M/s Software Services, LC, USA, for which they were paying them some amounts. The Department was of the view that the services being received by the appellant are Business Auxiliary Service taxable under Section 65 (105) (zzb) readwith Section 65 (19) of the Finance Act, 1994 and since these services are being received from an off shore service provider, the appellant as service recipient would be liable to pay service tax on the value of the services received under Section 66A of the Finance Act, 1994. On this basis a show cause notice dated 28/09/12 was issued to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....elhi reported in 2014 (33) S.T.R. 67 (Tri. - Del.), wherein it was held that there is no scope for assuming the ground implicit in issuance of show cause notice when the reason for issuance of show cause notice on the basis of prima facie assumption that assessee is assessable to service tax for providing Business Auxiliary Service is not specified and mere extraction of entire provision under Section 65 (19) of Finance Act, 1994 does not fulfill the requirement, that in this case the show cause notice does not mention as to under which clause of Section 65 (19), the service received by the appellant from M/s Software Services, LC, USA is covered, that the service received by the appellant is not covered by the definition of Business Auxili....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e from M/s Software Services, LC, USA, that this service is clearly covered by clause (ii) of Section 65 (19) of the Finance Act, 1994 and, therefore, just because the exact clause of Section 65 (19) is not mentioned, the show cause notice cannot be said to be invalid, that since the appellant had not disclosed to the Department, the receipt by them of taxable service from a party in USA and, as such, the fact of receipt of this service had not been reflected in the ST-3 returns filed by them, extended limitation period under proviso to Section 73 (1) has been correctly invoked and penalty under Section 78 has been correctly imposed. He, therefore, pleaded that this is not the case for waiver from the requirement of pre-deposit. 5. We have....
X X X X Extracts X X X X
X X X X Extracts X X X X
....able under Section 65 (105) (zzb) read with Section 65 (19) from M/s Software Services, USA came to light only in course of audit of the appellant's records by the Departmental auditor officers in October 2009, the fact remains these transactions, which took place during period from November 2007 onwards were not disclosed by them in the ST-3 returns filed by them or by any other communication to the Department. Therefore, at least for the period prior to October 2009, it cannot be said that the Department was aware of the receipt of taxable services by the appellant from M/s Software Services, LC, USA. Only in respect of receipt of service during the period w.e.f. October 2009 it can be said that the Department was aware of the transaction....