TaxTMI 
TaxTMI 
2015 (12) TMI 442
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.... As the issue in all the three adjudications is common, all three appeals are being disposed of together. 2. The major part of the demand (Rs.39,60,36,992/-) pertains to service tax under Business Auxiliary Service (BAS) on the ground that the appellant received payments against crate rentals on which it did not pay service tax. A relatively small (remaining) portion of the demand pertains to foreign currency expenditure under reverse charge mechanism. 3. The appellant has contended that the service tax demand on crate rentals is not sustainable because (i) crate rental has been collected by jurisdictional units across India while selling the beverages as a consideration towards transfer of right to use (deemed sale) and such rental was liable to VAT/CST (sales tax). Transfer of right to use was held to be liable to VAT/service tax by Hon'ble Andhra Pradesh High Court in W.P. No.25588 of 2007. (ii) Various jurisdictional authorities of appellants units already examined the issue and raised either excise duty demand or service tax demand on rental on crates. Customs, Excise and Service Tax Commissionerate, Hyderabad dropped the demand of service tax both under Business ....
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....ipt of services from abroad liable to service tax under Section 66A ibid, read with Import of Service Rules. It has already paid service tax wherever payment made in foreign currency was towards the receipt of taxable service. Moreover, the impugned order did not deal with specific transaction-wise reasons for non-payment of service tax furnished by the appellant and the service tax demand was confirmed mechanically on the basis of rescinded CBEC Circular dated 30.06.2010. Regarding "Other Payments", the appellant submits that vide its letter dated 08.06.2010 it furnished the transaction-wise breakup and reasons for payments not liable to service tax along for which another separate demand of service tax has been confirmed under other payments. (vii) No personal hearing was held for Show Cause Notice dated 28.09.2012. (viii) No basis has been given for adopting best judgment assessment at twice the level 2009-2010 for April, 2010 to March, 2011. 5. Ld. Departmental Representative, on the other hand, supported the impugned order reiterating the grounds contained therein. 6. As both sides agreed that the appeals themselves can be taken up at this stage, we proceed to do so waiv....
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.... discussed against the Taxable Services as defined under the provisions of Finance Act, 1994. The onus to prove otherwise in the instant case rests on the assessee, especially in the era of self-assessment procedures and by the fact that the assessee voluntarily had been paying tax liability on the said Taxable Services. It is worth mentioning here that the assessee never clarified as to why such amount was spent. In the given background, it can be deduced that the payments made in the Foreign Exchange were undoubtedly for the services received by the assessee in India in relation to the said Taxable Services. However, it is already a settled matter that mere nomenclature/ heading cannot be considered for the issue of taxability under the Act ibid. In the given context, the assessee admitted that the said expenditure was in or on relation to the said Taxable Services. Hence, it is invariably admitted and stand proved that there is a direct nexus between the said expenditure and the Taxable Services. Hence, the arguments/ contentions in toto are void ab initio. Hence, it cannot be the case that the Department is bound to prove with mathematical precision when the assessee acknowledg....
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....d. The appellant has stated that it has already paid Rs. 1,19,55,159/- (while the appropriation was only to the extent of Rs. 51,95,452/-). We find that the appellant also submitted transaction-wise breakup of foreign exchange expenses, which it claimed were not liable to service tax but the adjudicating authority has not dealt with the same. In respect of the Order-in-Original dated 29.09.2013, the best judgement assessment for 2010-11 in respect of "other payments" in foreign currency was made by adopting the figure which was double of the corresponding figure for the year 2009-10 without giving any reason for adopting such a high quantum jump. Further, as regards the service tax demand confirmed under the category of "other payments" on foreign exchange, we find that the appellant contended that there was duplication while confirming the demand. However, the adjudicating authority brushes aside this contention of the appellant by essentially stating that there is no documentary evidence adduced by the assessee duly certified. Further, we find the said component of demand is confirmed by observing as under:- "86.2 It is a matter of fact that the assessee is registe....