TaxTMI 
TaxTMI 
2023 (12) TMI 483
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....tion 75 of Finance Act, 1994. 2.1 The brief facts of the case are that the Appellants are authorised by Malaysian Government to conduct screening tests and bio metric registration of the persons seeking employment in Malaysia and upload the results in the web portal - Foreign Workers Centralised Management Scheme (FWCMS) maintained by M/s. Bestinet SDN BHD, Malaysia. M/s. Bestinet have entered into an agreement with the Appellant to provide IT Solutions through the Web Portal FWCMS. They collect fees from the Appellant towards supply of hardware FWCMS system and software, installation and commissioning of such FWCMS. M/s. Bestinet also collects service fee per person from the Appellant for uploading the outcome of the screening test along with bio-metric registrations of the persons seeking employment into FWCMS Portal. 2.2 Investigation conducted by DGGI revealed that the activity rendered by M/s Bestinet is a 'Service' as per Section 65B (44) of the Finance Act, 1994, and the same is taxable in terms of Section 65B(51) of the Act. In terms of Rule 3 of Place of Provision Rules, 2012, service is deemed to have been provided at the location of the service recipient. T....
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....ommerce, industry or any other business or profession: b) an entity registered under Section 12AA of Income Tax Act,1961 for the purpose of providing charitable activities or c) a person located in a non-taxable territory." The above ground was not considered in the impugned order for deciding on the eligibility of the said exemption. 4.3 The Ld. Chartered Accountant contended that the liability to pay Service Tax under reverse Charge Mechanism under Notification No.30/2012 dated 20.06.2012 in respect of import of services is only on the service receiver as the relevant clause (1)(B) reads as under: "(B) provided or agreed to be provided by any person which is located in a non-taxable territory and received by any person located in the taxable territory (other than non-assessee online recipient)" Since the OIA already concluded that the Appellant is not the service receiver, the liability to pay service tax under reverse charge shall not be applicable on the applicant. 4.4 It was submitted that the Service Provider confirmed that the Appellant is a mere collection Agency between the Service provider (M/s. Bestinet) and service receiver (Indian....
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.... if there is no deliberate withholding of information. Also in the case of Jaiprakash Industries limited Versus Officer of Central Excise, Chandigarh [2002-TIOL-633-SC-CX-LB] it was held that "---- this court has held that wherever there is the scope for believing that the goods are not excisable to duty and therefore, no license is required to be taken out, then the extended period of limitation for demand under Section11 A is inapplicable. This Court has held that mere failure or negligence on the part of the manufacturer in not taking out a license and not paying duty does not attract the extended period of limitation. This Court has held that there must be evidence to show that the manufacturer knew that the goods were liable to duty and that he was required to take out a licence. This Court has held that for invoking the extended period of limitation, duty should not have been paid, short-levied, or erroneously refunded because of either fraud, collusion, wilful mis-statement, suppression of fact or contravention of any provision or rules. This Court has held that these ingredients postulate a positive act and therefore mere failure to pay duty and /or take out a lice....
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.... Works Vs. Commissioner of Central Excise [1993 (65) ELT 166 (ALL)], Commissioner of Central Excise, Kanpur Vs. Manohar Glass Works [1996 (83) ELT 163(T)], Vasant Sahakari Sakhkar Karkhana Vs. CCE [1989 (43) ELT 98 (Tri.)] have also held that non-furnishing of information / facts which are known to all concerned, cannot be considered as suppression of facts. In this context, it was pointed that the CBEC Circular No. 312/28/97-CX dated 22nd April 1997 312/28/97-CX., had clarified that mere non-declaration is not sufficient for invoking the longer period, but a positive mis-declaration is necessary in the context of the Supreme Court decision in the case of M/s. Padmini Products and Chemphar Drugs. In this regard, further reliance was also placed on the following judicial pronouncements: - (i) Blackstone Polymers Vs. Officer of Central Excise, Jaipur-II [2014 (301) ELT 657 (Tri.-Del.)] (ii) Jaipur Jewellery Show Vs. Officer of Central Excise &ST, Jaipur-I [2017 (49) STR 313 (Tri.-Del.)] (iii) Officer of Central Excise, Raipur Vs. Rajaram Maize Products [2010 (258) ELT 539 (Tri.-Del.)] (iii) M/s. Krishna Polymers Vs. CCE & ST, Raipur [2018 (11) TMI ....
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....Bestinet is the developer and the owner of IT solution called Foreign Workers Centralized Management System (FWCMS) for the Government of Malaysia to manage all aspects of foreign worker recruitment. The FWCMS is a full-fledged web-based proprietary, end-to-end foreign worker management solution. The appellant has consented to collaborate with the Bestinet as a Medical Centre in the implementation of FWCMS. As part of this FWCMS, Remote System comprising equipment and software was provided by the Bestinet to the appellant. For the provision of FWCMS to the appellant, the appellant has agreed to pay initial fees of US$ 5,000 towards supply of equipment and FWCMS Software and for installation and commissioning of the system and a sum of US$ 2,000 as a deposit for the safe return of FWCMS equipment and software besides a sum of US$ 1,000 towards initial pre-deposit credit for the service fees. Further a transaction fee of US$ 15 per foreign worker (subsequently increased to US$ 30) who undergoes biometric registration and medical test at Al-Haramain Diagnostic Centre regardless of the outcome of the medical tests has to be collected from each candidate who undergoes these medical test....
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.... recipients for use of FWCMS software. I am of the opinion that the appellant is performing the activity of registration of Indian workers with FWCMS and so, the appellant has to be considered as an agent of M/s. Bestinet in providing the service of biometric registration to prospective workers. 11. Both the lower adjudicating authorities have held that M/s. Bestinet is the service provider. For the service recipients, the original authority held the appellant as the service recipient whereas the impugned order held the prospective candidates as service recipients. 12. Thus, an examination of the Order-in-Original and the impugned order reveals many contradictions as to who are the service recipients. Any foreign worker who is planning to go to Malaysia is required to register on Bestinet's FWCMS which is achieved through the remote system employed with the appellant. The service of registration of the foreign workers is performed by the appellant as an agent of M/s. Bestinet, Malaysia. As such, I am of the considered view that the appellant is the service provider along with M/s. Bestinet as both have collaborated and the prospective candidates / foreign workers are the ....