TaxTMI 
TaxTMI 
2025 (3) TMI 122
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....in-Original dated 30.12.2022 by which following has been held:- "ORDER (i) I confirm the demand of Service Tax amounting to Rs.78,16,912 [Seventy Eight Laklis Sixteen Thousand Nine Hundred and Twelve only] (including both cess) only upon the party Le. Shri Jai Prakash Singh, Post Manikalan Tehsil Shahganj Vill Sandahan, Jaunpur-222113 under the provisions of Section 73 (2) of Chapter V of the Finance Act, 1994 read with Section 142, Section 173 and Section 174 of CGST Act, 2017. (ii) I order for charging Interest at the appropriate rates under the provisions of Section 75 of the Finance Act, 1994 read with Section 142, Section 173 and Section 174 of CGST Act, 2017 on the amount of Service Tax, as confirmed at (i) above. (iii) I also impose a penalty of Rs.78,16,912 [Seventy Eight Lakhs Sixteen Thousand Nine Hundred and Twelve only] upon the party, under Section 78 of the Finance Act, 1994 read with Section 142, Section 173 and Section 174 of CGST Act. 2017. However, in terms clause (11) of second proviso of Section 78, the said penalty is liable to be reduced to 25% of the penalty as mentioned above, provided that the Service Tax as determined in....
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....o show cause as to why- "i. The Service Tax (including various cess applicable) amounting to Rs. 78,16,912 [Seventy eight lakhs Sixteen thousand Nine hundred and Rs. Twelve only) should not be demanded and recovered from them under proviso to Section 73 of the Finance Act, 1994. ii. The due interest on the amount of service tax mentioned at (i) should not be demanded and recovered from them under Section 75 of the Finance Act, 1994. iii. Penalty should not be imposed upon them under Section 78 of the Finance Act, 1994 for failure to pay service tax & suppressing the facts and value of taxable services with intent to evade payment of service tax. iv. Penalty should not be imposed upon them under Section 70 of the Finance Act, 1994 read with Rule 7C of the Service Tax Rules, 1994. v. Penalty under relevant provisions should not be imposed for not depositing of the service tax recovered from parties and crediting to Govt. Exchequer." 2.4 This show cause notice was adjudicated as per the Order-in-Original referred in para 1 above. 2.5 Aggrieved appellant have filed appeal before Commissioner (Appeals) which has been dismissed as per th....
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....s, it was noticed that the appellant have short paid service tax amount to the tune of Rs. 78,16,912/- 4.3 The appellant had provided transportation service to outside India to various cement manufacturers and the payment was received only from them and have contended that they have received the payment from outside from India ie. Nepal and therefore, there is no service tax liability on their part. Further appellant have provided transportation service inside India also and received commission from the truck owners. The service tax liability Rs 6,24.755/ due for the commission charges has already been paid by appellant during the impugned period. However the appellant has claimed that no such service tax liability is required to be paid on the commission received by their agents. Therefore the amount of Rs 6,24,756/-may be refunded to them and the proceeding initiated against appellant may be dropped. It is further stated that the appellant in relation to the transportation made inside India, the appellant only charges the commission from the truck owner and the freight has been received by the truck owner from the person who takes the delivery and the appellant nowhere i....
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....ordance with item (b) of Explanation 2 of clause (44) of section 65B of the Act. 5.4.2 On going through the statutory provisions above, I observe that the services provided by the appellant shall qualify as export of service only if all the conditions laid down in clause (a) to (f) of Rule 64 (1) of the Service Tax Rules 1994 is fulfilled. I observe that as per Rule 10 of the Place of Provision of Services Rules, 2012, the place of provision of a service of transportation of goods is the place of destination of goods, except in the case of services provided by a GTA in respect of transportation of goods by road, in which case the place of provision is the location of the person liable to pay tax, as determined in terms of Rule 2(1)(d) of Service Tax Rules, 1994. Further, the Rule 2(1)(d) of Service Tax Rules, 1994 provides that where a service of transportation of goods is provided by a 'goods transportation agency', and due to reverse charge the person liable to pay tax is the person who pays, or is liable to pay freight (either himself or through his agent) for the transportation of goods by road in a goods carriage. But, as per proviso to Rule 2(1)(d) ibid, if t....
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....during the impugned period can be extended to the appellant as raised in their grounds of appeal. 5.7 I find that the appellant have provided taxable services but have failed to pay service tax leviable therein and therefore, I also find that demand of service tax of Rs. 78,16,912/- under proviso to Section 73(1) of the Finance Act, 1994 is justified. I observe that the issue of short payment of Service Tax was detected by the Department on the basis of third party information provided by the Income Tax Department for FY 2015-16 10 2017 18 (June 17) and was not declared try the appellant on their own, though they were registered with the department and suppressed the taxable value. The facts manifest appellant's Intention to evade payment of Service Tax as, if the department had not detected short payment of tax, the evasion would have gone on unchecked. Contravention of statutory provisions is evident and manifest from records and therefore, Invocation of extended period is justified. 5.8 On examining the facts of the instant case in terms of Section 75 of the Act 1 find that where any amount is payable as tax but not paid/paid belatedly, it results in financ....
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....able to pay freight is,- (I) any factory registered under or governed by the Factories Act, 1948 (63 of 1948); (II) any society registered under the Societies Registration Act, 1860 (21 of 1860) or under any other law for the time being in force in any part of India; (III) any co-operative society established by or under any law; (IV) any dealer of excisable goods, who is registered under the Central Excise Act, 1944 (1 of 1944) or the rules made thereunder; (V) any body corporate established, by or under any law; or (VI) any partnership firm whether registered or not under any law including association of persons; any person who pays or is liable to pay freight either himself or through his agent for the transportation of such goods by road in a goods carriage: Provided that when such person is located in a non-taxable territory, the provider of such service shall be liable to pay service tax. 4.4 In the present case, we observe that appellant is engaged in providing Goods Transport Agent services. They issue consignment notes for transportation of goods from India to Nepal for which payments are received b....
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.... services.- The place of provision of services of transportation of goods, other than by way of mail or courier, shall be the place of destination of the goods: Provided that the place of provision of services of goods transportation agency shall be the location of the person liable to pay tax. From the above Rule, it is evident that in case of Good Transport Agency Service the place of provision of service is location of the person liable to pay service tax. In the present case the person liable to pay service tax is the consignor or consignee as the case may be and the location of the said person will be the place of provision of service. 4.7 The Pace of Provision of Service Tax Rules, 2012 are for the purpose of determining taxability of the services in dispute. As per the "Taxation of Service And Education Guide" issued by Tax Research Unit, Central Board of Excise & Customs- "5.1 Introduction 5.1.1 What is the relevance of the 'Place of Provision of Services Rules, 2012'? The 'Place of Provision of Services Rules, 2012' specify the manner to determine the taxing jurisdiction for a service. Hitherto, the task of identifying the taxing j....
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....tice and hence there cannot be any justification of raising the same in demand proceedings under Section 73. If appellant intends any relief in this respect the same should have been claimed by way of an application made under Section 11B of Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 if legally permissible. In absence of any such application we do not find any merits in the said submissions. 4.11 As the demand cannot stand in the test of limitation, the same is set aside. Penalties imposed upon the appellant are also set aside. 5.1 Appeal is allowed as indicated in para 4.11. (Dictated and pronounced in open court) ============= Document 1 RELIANCE TAX INVOICE ã• nt Company P Cemen IN NO 10080013 Date: 25 04 201 SO NO 0141452 Cut Order No. AYA BAGESHWORL CustOrder Date CONSIGNEE NAME & ADDRESS MER NAME & ADDRESS CODE 10400850 CODE 100 HWOPI CEMENTS PVT LTD JA BAGESHWORI CEMENTS PATLID ANKE NEPAL GANAR VDC BANKE NEPAL 20577228 CST 30577028 d From RCCPL Maihar Date Product 1 23 04 2014 CLINKER NEPAL NEPAL-x000 Ema ID: Castomer CST 3050228 Quantity M To....