TaxTMI 
TaxTMI 
2022 (8) TMI 761
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....d four appeals, concern the following periods i.e., July to September 2012; October to December 2012; January to March 2013 and April to June 2013. 2.1. The fifth appeal i.e., STA 52992/2016 is concerned with the seven subsequent quarters, spanning between July 2013 to March 2015. 2.2. The respondent i.e., the assessee, being aggrieved by the Orders-inAppeal, had preferred appeals before the Tribunal, which were allowed, as noticed above, via the impugned order dated 02.09.2021. 3. This time around, the appellant/revenue was aggrieved and therefore, preferred the instant appeal under Section 35G of the Central Excise Act, 1944, read with the applicable provisions of the Finance Act, 1994 [in short, '1994 Act'] and Section 174 of the Central Goods and Services Tax Act, 2017 [hereafter referred to as the "CGST Act 2017"]. 3.1. For the sake of convenience, the appellant will hereafter be referred to as 'revenue', while the respondent will be referred to as 'assessee'. 4. The revenue has, thus, via the instant appeal, proposed for our consideration, the following substantial questions of law: "a. Whether the Ld. CESTAT was correct in holding that the Respondent ....
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....ntioned periods. 9. Insofar as the fifth appeal i.e., STA 52992/2016, is concerned, the assessee's applications (which were seven in number), as alluded to hereinabove, and spanned seven quarters falling between July 2013 to March 2015, were rejected and in an appeal preferred by the assessee, the Commissioner of Appeals sustained the order of rejection. 10. It is in this background that the assessee, as adverted to above, was constrained to move the Tribunal. 10.1. The Tribunal passed a common order with respect to five appeals lodged before it, as the issues which arose for consideration had a common thread running through them. 11. It is in this backdrop that the arguments have been advanced on behalf of the revenue by Mr Akshay Amritanshu and likewise, on behalf of the assessee, by Mr J. K. Mittal. 12. Mr Amritanshu has submitted that the Tribunal has committed a serious error in allowing the appeal preferred by the assessee by misinterpreting the provisions of the 2004 Rules. 12.1. In support of his submissions, Mr Amritanshu has placed reliance upon the provisions of Rule 2(p) and Rule 5 of the 2004 Rules. 12.2. It is Mr Amritanshu's contention that since....
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....reafter: "Section 68. Payment of service tax (1) Every person providing taxable service to any person shall pay service tax at the rate specified in section 66B in such manner and within such period as may be prescribed. (2) Notwithstanding anything contained in sub-section (1), in respect of such taxable services as may be notified by the Central Government in the Official Gazette, the service tax thereon shall be paid by such person and in such manner as may be prescribed at the rate specified in section 66B and all the provisions of this Chapter shall apply to such person as if he is the person liable for paying the service tax in relation to such service." 17.2. As would be evident from the extract above, Sub-section (1) of Section 68 of the 1994 Act brings within its sway all taxable services for the purpose of payment of tax. 17.3. Sub-Section (2) of Section 68 of the 1994 Act, however, imposes the obligation of payment of service tax upon such persons, in the manner and at the rate prescribed under Section 66B and all other provisions of Chapter-V, as if such person is liable for paying service tax in relation to such service. 17.4. To put....
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....of the 1994 Rules would show that insofar as an individual advocate or a firm of advocates is concerned, who provide legal services to any business entity located in the taxable territory, the burden of tax is to be borne by the recipient of such service. 18.2. The assessee, admittedly, falls in this zone, insofar as legal services which are provided by it to the recipients located in the taxable territory are concerned. 19. Rule 2(p) of the 2004 Rules, on which the revenue seeks to place reliance, reads as follows: "Rule 2(p) 'output service' means any service provided by a provider of service located in the taxable territory but shall not include a service. - (1) specified in section 66D of the Finance Act; or (2) where the whole of service tax is liable to be paid by the recipient of service." [Emphasis is ours] 19.1. Therefore, a plain reading of Rule 2(p) of the 2004 Rules would show that the definition of "output service" has the following attributes: First, the service should be provided by a provider of service who is located in the taxable territory. Second, the service provided by the service provider should not fall in the negative ....
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....to Rule 5 of the 2004 Rules being rendered redundant. 22. Before we conclude, we may also indicate that the analogy drawn by the revenue with exempted service is flawed, is evident upon a plain reading of Rule 6(7) of the 2004 Rules. The said rule reads as follows: "Rule 6. Obligation of manufacturer of or producer of final products and a provider of output services. [(1) The CENVAT credit shall not be allowed on such quantity of input used in or in relation to the manufacture of exempted goods or for provision of exempted services, or in input service used in or in manufacture of exempted goods and their clearance upto the place of removal or for provision of exempted services, except in circumstances mentioned in sub-rule (2). Provided that the CENVAT credit on inputs shall not be denied to job worker referred to in rule 12AA of the Central Excise Rules, 2002, on the ground that the said inputs are used in the manufacture of goods cleared without payment of duty under the provisions of that rule.]^2 xxx xxx xxx (7) The provisions of sub-rules (1), (2), (3) and (4) shall not be applicable in case the taxable services are provided, without ....