TaxTMI 
TaxTMI 
TaxTMI 
2018 (9) TMI 41
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....& IPL 2010. The services received by the Appellant, were classifiable under the category of "Programme Producer's Service" and were leviable to Service Tax. Since the services were being provided by the nonresident service provider, the service tax liability was required to be discharged by the Service Recipient. Since the appellant had not paid the service tax due, in respect of payments made by them to the said nonresident service providers during the month of August and September 2010, a show cause notice dated 14.10.2011 was issued to them demanding the service tax due. The said show cause notice has been adjudicated, and Commissioner held as follows a) I order that the classification of services received by BCCI from the two service providers, M/s IMG Media Ltd & M/s Hawkeye Innovations, would fall within the definition of "programme producer's services" under section 65(105)(zzu) read with section 65(86a) and 65(86b) of the Finance Act, 1994. b) I fully confirm the demand of service tax to the extent of Rs. 1,59,92,743/- (Rupees One Crore Fifty Nine Lakhs Ninety Two Thousand Seven Hundred and Forty Three Only) under Sec 73(2) of the Finance Act, 1994 and order BCCI to pay t....
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....arned Chartered Accountant for the Appellant and Shri M K Sarangi, Joint Commissioner (Authorized Representative) for the revenue. 4.1 Arguing for the Appellant, Learned Chartered Accountant submitted a. It is an admitted fact that for the past period on the same issue, demand has been confirmed against them and the order of CESTAT upholding the demand has been upheld by the Apex Court. b. During the period of earlier demand that has been confirmed by the Apex Court, the output service provided by them was not a taxable service. The situation has changed because during the period of current demand, their output service was taxable under the category of "Commercial Use or Exploitation of an Event" service. Since their output service is a taxable service, even if the service tax demand in respect of the input services received by them namely "program producer's services" is confirmed and recovered from them the same will be available as credit to them for discharging the tax liability in respect of the output services provided by them. Hence this demand in the present case is revenue neutral. Since the demand is revenue neutral it cannot be held against them in view of decisions a....
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....id category. [Board of Cricket Control for India Vs Commissioner [2015 (37) ELT STR 785 (T-MUM)] upheld by the Apex Court [2015 (37) STR J176 (SC)]. Thus the service tax in respect of this service was due from the Appellant on reverse charge basis and was to be paid by them on the due date as prescribed. 6.0 Appellants have argued that in the present case the output services provided by them were taxable under the category of "Commercial Use or Exploitation of Events" and hence they would have taken the credit of tax paid by them on reverse charge basis in respect of the input services received by them. Since the entire amount of tax demanded by them would be available as credit to them the demand of tax is not justified against them, in view of the decisions cited by them. The argument advanced by the Appellant do not appear to be convincing as in the present case the Service Tax liability which is being determined, is in respect of the services received by them from the nonresident service provider. This is not the case of payment of tax on the forward charge basis, and the tax is payable by the recipient of the service, as if the same was due from the service provider. All the ....
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....ibunal in case of similarly placed manufacturer [Indian Rayon and Industries Ltd [2000 (119) ELT 636 (T)]] whereby tribunal has held that if duty was to be paid at each stage of manufacture then manufacturer will be entitled to MODVAT credit of duty so paid. Thus Apex Court has held that since amount of duty so paid at each stage of manufacture will be available as credit at the subsequent stage, the entire exercise is revenue neutral. The case is distinguishable from the present case as in this case there was no effective transaction of the goods from one stage of manufacture to next stage of manufacture, and the liability to pay the Central Excise Duty at each stage of manufacture was on the same person/ manufacturer. However in the present case there is a transaction between the nonresident service provider and service recipient in India and this transaction is leviable to service tax and payment of same is to be made by the recipient of the service in the manner prescribed. Since in present case the tax was actually payable by the service provider, but for the reason of him not being available in India, the same is recoverable from the service recipient. In case of Siddeshwar ....
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....ufactured goods. Examining the facts of the case in light of the above, we find that the case cannot be revenue neutral in view of the fact that in this case because service tax is being demanded from the Appellant only for the reason that the service provider is nonresident, in case service provider was located in India, service tax would have been paid by him in respect of the present transactions. Manner of payment of the tax would not change the nature of levy and in any case if the argument of revenue neutrality is accepted as permissible defense in the present case entire scheme of payment of taxes on reverse charge basis will become otiose and no business liable to pay service tax would be required to pay service tax in respect of services received by them from nonresident service providers, for the reason that the tax so paid will be available as credit to them. 6.5 Decision of the tribunal in case of Dinesh M Kotian has been passed without taking into account the decision of larger bench in case of Jay Yushin and hence is rendered per in curiam. 6.6 In case of DharamPal Satyapal Vs Commissioner of Central Excise New Delhi [2005 (183) ELT 241 (SC)], on issue of availabi....
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....of proforma and modvat credit together with the benefit of exemption under notification no.121/94 dated 11.8.1994 was substantially equal to the demand for duty herein and, therefore, there was no intention to evade payment of duty. 24. We do not find any merit in these submissions. As stated above, the adjudication in this case was confined to the question of excisability and concealment of the existence of two units in which the compound (kimam) was manufactured. No explanation has been given by the assessee for not disclosing the affairs of these units, particularly when the assessee was in business for couple of years and when the assessee had been dealing with other traders who operated from licensed factories. It was for the assessee to explain the reasons for not getting the units registered or licensed. It was for the assessee to explain its failure to maintain the records under the 1944 Act and rules thereunder. In each of the above decisions, we find that there was substantial compliance of the rules under the said Act. In each of the decisions the findings indicate technical non compliance and not total non-compliance of the rules. It was for the assessee to explain th....
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....he provisions of section 75, a penalty which shall not be less than two hundred rupees {substituted as one hundred rupees with effect from 8.04.2011 by Finance Act 2011} for every day during which such failure continues or at the rate of two per cent. {substituted as one percent with effect from 8.04.2011 by Finance Act 2011} of such tax, per month, whichever is higher, starting with the first day after the due date till the date of actual payment of the outstanding amount of service tax: Provided that the total amount of the penalty payable in terms of this section shall not exceed the service tax payable." Commissioner has in para 11.9 of his order determined the penalty in terms of the said section in following manner: Upto 7.04.2011 penalty @ Rs. 200/day or 2% From 8.04.2011 penalty @ Rs. 100/ day or 1% Month for which Service Tax Due August 10 September 10 August 10 September 10 Due Date for payment 6.09.10 6.10.10 6.09.10 6.10.10 Tax payable 2803300 13189443 2803300 13189443 Date of Payment 14.1.15 14.1.15 14.1.15 14.1.15 No of Days 214 184 1377 1377 Penalty =No of Days X 200/ 100 as the case may be 42800 36800 137700 137700 Penalt....
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....he Statute or violates the legislative intent when read as it stands. Hence, Section 76 of the Act as it stands does not give any discretion to the authority to reduce the penalty below the minimum prescribed." 7.2 In case of Commissioner Central Excise vs. Krishna Poduval reported in 2006 TIOL-77-HC-KERALA- ST (1) STR 185 (Ker.) High Court upheld the penalty under Section 76, even when the penalty under Section 78 was there- "11. The penalty imposable under Sec 76 is for failure to pay service tax by the person liable to pay the same in accordance with the provisions of Sec 68 and the rules made thereunder, whereas Sec 78 relates to penalty for suppression of the value of taxable service. Of course, these two offences may arise in the course of the same transaction, or from the same act of the person concerned. But we are of the opinion that the incidents of imposition of penalty are distinct and separate and even if the offences are committed in the course of same transaction or arises out of the same act, the penalty is imposable for ingredients of both the offences. There can be a situation where even without suppressing value of taxable service, the personal liable to pay s....