TaxTMI 
TaxTMI 
2020 (9) TMI 388
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....exed in the paper book provides that Wuxi CTT is engaged in similar business of manufacture, sales and service of Turbocharger and its components in China. The appellant as manufacturer - exporter was providing warranty for its products, for which they required after sales service. Wuxi CTT was having adequate knowledge, experience and resources to provide 'Customer Support and Service' to customers of appellant in China. Accordingly, under the agreement which was made effective from 01.01.2011 till 31.12.2013, unless terminated earlier, provided for various obligations on Wuxi CTT to provide 'Customer Support Services' for the products of the appellant exported and sold in China. Accordingly, Wuxi CTT was to act as a single point in China at local level and for that to maintain adequate trained personnel. Further, Wuxi CTT was required to address warranty issues under the terms of warranty and to furnish to the appellant details of warranty and any claim by their customer. Wuxi CTT was also required to provide monthly and annual reports for guidance as well as demand forecast for use of the appellant. In consideration, appellant was obligated to pay 5% of the ex-works price invoic....
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.... of specified services approved by the approval Committee of SEZ, copy of agreement between the appellant and the service provider Wuxi CTT, copy of letter of authorisation. 6. In response to clarification sought by the Department, appellant by their letter dated 05.03.2014 clarified that they have submitted the GAR-7 challans and service tax have been paid under RCM. The service qualified under the category of BAS, received from associated company located outside India. Further, clarifying that since the service provider raises monthly bill and they have made provision or entry in the books of accounts, and paid service tax accordingly under Section 66B read with second proviso to Rule 7 of Point of Taxation Rules. 7. Thereafter, show cause notice dated 09.07.2014 was issued proposing to reject the refund claim on the following grounds: (a) Challans for payment of service tax and agreement are not enough for ascertaining that services on which service tax has been paid under RCM, has been utilised for the authorised operation of the SEZ. Because they have another unit other than the SEZ unit, and the agreement of service is not specific for the SEZ unit. (b) Services receive....
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....cordingly liable to service tax in terms of Section 66B of the Finance Act. 10. Further, appellant had declared that the specified service have been received and used for the authorised operation in their SEZ. Also another declaration from Senior Manager of DTA unit at Debas, that no service has been received by them from Wuxi CTT, China. Appellant also submitted certificate of Chartered Accountant with bank statement/ advice as proof of payment made to the service provider of Rs. 37,17,771/- towards service received for the period July, 2012 to December, 2012. It was further clarified that in view of the termination of the service agreement w.e.f. 01.01.2013, the amount booked for provision of service in the books of account Rs. 90,93,129/- for the period January, 2013 to July 2013, was not paid to the service provider. However, they have paid service tax upon booking of such service, based on the invoice of service provider in their books of account and paid service tax under reverse charge mechanism. The Assistant Commissioner further observed that under the reverse charge mechanism, under Section 68(2) of the Finance Act read with Notification No. 30/12-ST, in respect of servi....
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....SEZ unit, of services used for its authorised operation. Thus, under the provision read with Rules which have overriding effect on the provisions of the Finance Act, 1994 (ST), no embargo can be made. Reliance is placed on the ruling of this Tribunal in Intas Pharma Limited vs. CST, Ahmedabad -2013 (7) TMI 703 -CESTAT New Delhi and also in the appellant's own case reported as 2018 (5) TMI 565-CESTAT, New Delhi. It is further urged that Rule 7 of Point of Taxation Rules provide for determination of point of taxation in case of specified services or person. The second proviso to Rule 7 provides for point of taxation in case of import of service from an associated enterprises, as the date of debit in the books of accounts of the person receiving the service or the date of making the payment, whichever is earlier. Therefore, the second proviso to Rule 7 of POTR creates a deeming fiction by providing the date of debit in the books of the recipient/ appellant as point of taxation, and thus service tax has been rightly paid under the reverse charge mechanism also for the period January, 2013 to July, 2013. Reliance is placed on the following rulings to the effect that once there is no dis....