TaxTMI 
TaxTMI 
2016 (3) TMI 619
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....epartment. The appellant is also registered with the service tax department for the category of 'Business Auxiliary Service' for payment of service tax under reverse charge mechanism in case of services received from foreign party. The appellant paid service tax Rs. 1,05,03,352/- for the period January 2006 to April 2010 through TR 6 challan on the commission paid by them to the foreign commission agent in terms of the Finance Act, 1994 read with Rule 2(1)(d)(iv) of the Service Tax Rules, 1994 and availed the credit of service tax paid on the aforesaid service. Thereafter the department issued a show-cause notice demanding the above said amount of Rs. 1,05,03,352/- for the period January 2006 to April 2010 proposing to reject the Ce....
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....sion paid to commission agent located outside India under taxable head of 'Business Auxiliary Service' as defined under the Finance Act, 1994 as held by the ld. Commissioner. But since they have paid the service tax on the services rendered by the foreign entity therefore the credit taken was nothing but a refund of the tax erroneously paid by the appellant in their Cenvat Credit account. He further submitted that the appellant have paid service tax after introduction of explanation to section 65(105) of the Finance Act, 1994. Therefore the appellant are entitled for credit of service tax paid. He also submitted that prior to insertion of explanation clause only services provided in India were taxable. There was no statutory provisi....
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....ated as if the recipient had himself provided the service in India , and accordingly all the provisions of Chapter V of the Finance Act, 1994 would apply. Therefore, it is clear that section 66A is not a charging section by itself. In fact, it only creates a legal fiction to deem import of service as provision of service within India so that the provisions of Chapter V of the Finance Act, 1994 can be applied to. The charging section remains section 66 even for the service imported. In other words, the tax collected from the recipient in terms of Section 66A is also tax chargeable under section 66 of the Finance Act, 1994. 3. In view of the foregoing, it is clear that there is no mistake or omission in the relevant provisions of the....
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....el placed reliance on the following decision:- (i) Bajaj Allianz General Insurance Co. Ltd. - 2014-TIOL-1540-CESTAT-MUM (ii) Glyph International Ltd. vs. UOI 2012 (25) STR 209 (All) (iii) CCE vs. Ajinkya Enterprises (iv) CC vs. Toyo Engg. India Ltd. (v) MDS Switchgear Ltd. vs. CCE 2001 (132) ELT 405 (vi) CCE vs. MDS Switchgear Ltd. 2008 (229) ELT 485 (SC) (vii) CCE vs. Creative Enterprises 2009 (235) ELT 785 (Guj) (viii) Deloitte Haskins & Sells vs. CCE - 2015-TIOL-366-CESTAT-MUM He also submitted that after accepting the payment of service tax by the respondent, credit cannot be denied on the ground that the tax itself was not payable and on this submission, he reli....
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....service tax was only Section 66. In support of his submission, he relied upon the following judgments:- CCE vs. Bhandari Hosiery Ltd. 2008 (11) STR 151 Indian National Shipowners Association vs. UOI 2009 (13) STR 235 CCE vs. Lumax Samplip Industries Ltd. 2015 (37) STR 787 CCE vs. Hari Chand Shri Gopal 2011 (1) SCC 236 Parle Agro P. Ltd. vs. CCE 2015 (37) STR 385 7. I have heard the ld. Counsel for the parties and carefully perused the material on record including the circulars issued from time to time by the CBEC and also the judgments cited at bar by both sides. 8. After going through the various circulars and the judgments I find that there is only one charging section in the service tax ....