TaxTMI 
TaxTMI 
TaxTMI 
2020 (1) TMI 897
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....1, January 2002, to May 2002, July 2002, October 2002, December 2002 and February 2003 under section 68 read with Section 73(2) of the Finance Act, 1994 read with Rule 6 of the Service Tax Rule, 1994, which be paid by/ recovered from the noticee; b) I confirm the demand of Service Tax amounting to Rs. 35,60,733/- (Rupees Thirty Five Lakhs Sixty Thousand Seven Hundred and Thirty Three only) which was not paid by them on the suppressed/ concealed taxable value of service rendered as 'Manpower Recruitment Agency" and which escaped assessment for months of October 1998 to March 1999 and March 2003 to November 2003 under section 68 read with Section 73(2) of the Finance Act, 1994 read with Rule 6 of the Service Tax Rule, 1994, which be paid by/ recovered from the noticee; c) I confirm the demand of Service Tax amounting to Rs. 25,78,000/- (Rupees Twenty Five Lakhs Seventy Eight Thousand only) which was not paid by them on the suppressed/ concealed taxable value of service rendered as 'Clearing and Forwarding Agent" and which escaped assessment for months of 1st October 1998 to March 2003 under section 68 read with Section 73(2) of the Finance Act, 1994 read with Rule 6 of the Serv....
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.... (Rupees One Lakh Eight Thousand Seven Hundred and Fifty Five only) for the period from April, 2003 to March 2004 and confirm the demand of Service Tax amounting to Rs. 1,08,755/- (Rupees One Lakh Eight Thousand Seven Hundred and Fifty Five only) for the period from April, 2003 to March 2004 under section 73(2) read with Section 68 of the Finance Act, 1994 and Rule 6 of the Service Tax Rule, 1994, d) I confirm the demand and recovery of interest at appropriate rate on the amount confirmed at (a), (b) and (c) above under Section 75 of the Finance Act, 1994 read with Rule 6 of the Service Tax Rules, 1994; e) I impose a penalty which shall be one hundred rupees for every day during which failure continue, so, however, that the penalty under this clause shall not exceed the amount of service tax that the Noticee failed to pay, under Section 76 of the Finance Act, 1994; f) I impose a penalty of Rs. 1000/- (Rupees One Thousand only) per return for failure to file prescribed returns for the half year ending March, 2003 and September, 2003 and March, 2004 under Section 77 of the Finance Act, 1994. g) I impose a penalty of Rs. 1,10,89,541/- (Rupees One Crore Ten Lakhs Eighty Nin....
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....uld not be recovered from them under Section 75 of the Act read with Rule 6 of The Service Tax Rules, 1994 and the amount of Rs. 2,51,912/- and Rs. 28,928/- paid by them on 23.03.2003 should not be appropriated against the interest payable by them; (c) Penalty should not be imposed upon them under Section 76 and Section 78 of the Finance Act, 1994. B. Show Cause Notice F No V/STC/SA- 115/Gr.VII/2003 dated 07.04.2005- (a) The Service Tax amounting to Rs. 1,01,08,946 for the period April 2003 to March 2004 on account of wrong availment of exemption under Notification No 21/2003 dated 20.11.2003 in respect of services rendered as "Steamer Agent", Service Tax short paid amount to Rs. 1,08,755/- on account of wrong availment of Service Tax credit and Service Tax amounting to Rs. 8,71,840/- on account of difference in amounts mentioned in Balance Sheet and taxable value shown in ST-3 Return in respect of the service rendered as "Manpower Recruitment Agency" totalling to Rs. 1,10,89,541/- should not be demanded and recovered from them under Section 68 read with Section 73(2) of the Finance Act, 1994 read with Rule 6 of the Service Tax Rule, 1994; (b) Interest at the appropriate....
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....fter has recorded his findings on internal page 21 to 31 of the impugned order. * In para 4.10.3, Commissioner recorded that as per the Board' Circular dated 25.04.2003, for the period prior to 1999 and after 2003 export of services are not taxable. That it was only from 03.03.2005 that Export o Service Rules, 2005 came into existence; * Thereafter he concluded that the benefit under Notification No 6/99 would not be applicable if there is repatriation of the foreign exchange; * In para 4.10.4 he holds that the agency commission retained from the remittable surplus freight of the principal cannot be treated as received in foreign exchange; * In para 4.12 Commissioner holds that if the payment is not received as prescribed by Reserve Bank of India, it would lead to non satisfaction of the condition of Notification 6/99. * In para 4.16.1 he deals with the applicability of extended period of limitation. * After holding as above Commissioner has confirmed the demand made in both the show cause notices along with interest and penalty * Since the matter was once remanded to Commissioner for considering the submissions made by them, it should not be remanded again and....
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....going, the gross amount is chargeable to Service Tax and no deduction is allowable." 4.6 Then in para 4.10.3 he refers to various notifications issued by the Government of India granting exemption from payment of Service Tax when the payments have been received in convertible foreign exchange and concludes as follows: "4.10.3 .....Thus the exemption benefit of Notification No 6/199-ST dated 09.04.1999 and subsequent benefit will not be applicable or available to the noticee as the terms and conditions of the said Notification has not been fulfilled. 4.10.4 The benefit of Notification No 6/99-ST dated 09.04.199 was not applicable to the assessee as the agency commission retained from the remittable surplus freight of the Principal cannot be treated as received in foreign exchange. The said notification provided for exemption from Service Tax, if payment for services is received in freely convertible foreign exchange and the foreign exchange is not repatriated out of India. This exemption was withdrawn vide Notification 2/2003- ST dated 01.03.2003. CBEC vide Circular No ST-56/5/2003 dated 25.04.2003 had clarified that Service Tax is a destination based consumption tax and the....
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....ld that circumstantial flexibility, one additional or different fact may make the world of difference between conclusion in two cases." 4.12 From the above discussions which analyze the entire discussions an findings as recorded by the Commissioner, we find that entire discussions do not even refer to the service provider and service recipient, the contract between the two and any of the issues raised by the appellants in their defences submissions. The order is just quoting the provisions of the law and clarifications issued by the Board from time to time. It does not discuss in any way the applicability of the same to the present set of facts. We are constrained to observe that the impugned order running into 31 pages is a non speaking order bereft of any reasoning, which is heart and soul of any order determining the rights of party. Hon'ble Supreme Court has in case of Saheli Leasing and Industries Ltd [2010 (253) ELT 705 (SC)] laid down the law stating as follows: "4. This Court, time and again, reminded the courts performing judicial functions, the manner in which judgments/orders are to be written but, it is, indeed, unfortunate that those guidelines issued from time to....