2017 (9) TMI 235

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... required to pay the service tax as per the provisions of Section 66A of the Finance Act, 1994 and the provisions contained in Taxation of Services (Provided from Outside India and Received in India) Rules, 2006. It was noticed that the appellant failed to discharge the service tax liability in certain cases. The appellants were making payments or making provisions for payment in their books of accounts when dealing with their group companies of abroad. As per the explanation (c) inserted on 10/05/2008 in Section 67 of Chapter V of Finance Act, 1994. Even the payment of service tax is required to be paid on the amount for which provisions for payment related to the transaction with associated enterprises is made in the books of accounts of ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ly on the actual receipt of the payment. It is due to inadvertent that the appellant continued to follow the provisions prevailing prior to 10/05/2008. It is also fact that they have been showing the amount of provision in their books of accounts. Therefore, that amount in any case was not liable to service tax at the time of making provision but at the time of payment of the said amount to the foreign service provider. Therefore, in the peculiar fact of the case, the suppression of fact is not established. He further submits that the service tax which was payable on the amount of provision made in the books of accounts was instantly available as a Cenvat Credit to the appellant themselves. On such a situation, the excise duty which they ar....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....vision in the law to avoid the service tax only for the reason that the Cenvat Credit of the same amount is available to the assesee. He submits that the appellant did not declare the service value in their ST-3 return, therefore, there is a clear suppression of fact of the appellants. Accordingly, the penalty imposed under Sections 76 & 78 cannot be waived. 4. We have carefully considered the submissions made by both the sides. We find that the issue is that the appellant was liable to pay service tax on the amount for which provision was made and booked in their books of accounts of the appellant. It is observed that the appellant was otherwise making their regular payment of service tax in respect of service charges paid to the foreig....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....it can be seen that there was a clear intention of the appellant to opt for the provision of Section 73 (3) of the Finance Act, 1994. The appellant paid the service tax along with interest and submitted the above letter much before the issuance of the show-cause notice which was issued on 18/01/2011. Accordingly, the department was not supposed to issue of any show-cause notice to the appellants. The appeal is therefore, allowed. (Pronounced in Court on) ============= Document 1 The Assistant Director DGCEI, Pune Regional Unit, Pune 411.030. Ref. CEX/138/09-10 Date: 02.07.2009 Subject-Ongoing hvestigation by the efficer's of DCCET, Pune Dear Sir, We refer to our letters dt. 28.05.2009, 10.06.2009 and 30.06.2009.....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... 4,56,000/- (Mar. 09) ST. 0 10% = 45.600/- E. Ces 2% = 912/ Total TOTAL 11,89,91,000/ In this regard, we would like to inform you that today paid service tax for Pimpri, Chinchwad and Bingar un regards the payment in respect of coniunfore unit, tomorrow due to some unavoidable circumstances. 46.968% 1,45,69 948/ on 02.07.2009); we have as mentioned above. As the came. vill ge pald Naive Document 2 We are submitting herewith xerox copies of the CAR 7 challans prepared and deposited in the Bank for the above payment. Copy of the challan for Coimbatore unit will be produced tomorrow. We would further like to inform you that, we are in the process of calculating the in....