TaxTMI 
TaxTMI 
2026 (6) TMI 6
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....tax, Delhi-III Commissionerate which is now an integral part of CGST, Delhi South Commissionerate. (ii) That the Petitioner namely M/s ACB India Limited (Spectrum) has filed an appeal against OIO No. 09-10-TPS-PC-CGST-DSC-2020-21 dated 01.09.2020. (iii) That huge arrears is pending for realization. (iv) That the Department have a strong case and the balance of convenience lies in favour of Department. 2. The brief facts of the case are that the appellant was engaged in the activity of beneficiation of coal whereby the raw coal belonging to its customers who are mostly Electricity Generating Companies is washed to reduce the ash content in raw coal. The washed coal is supplied to the customer and the rejects generated during the process is disposed off by the appellant. The present appeal arises out of the impugned order dated 01.09.2020 whereby Show Cause Notice dated 09.05.2017 pertaining to the period 2013-14 and 2014-15 and Show Cause Notice dated 11.04.2018 pertaining to the period 2015-16 to 2017-18 (up to June 2017) were adjudicated. The first Show Cause Notice dated 09.05.2017 sought to raise demand of Service Tax under three heads namely: ....
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....,09,620/- to Syndicate Bank, London in 2013-14 as Bank charges towards seeking "No Objection Certificate". The Revenue, in the Show Cause Notice, had sought to levy service tax of Rs. 21,387/-treating the amount paid to Syndicate Bank, London as a facilitation fees for arranging the External commercial borrowings and it was also alleged that the onus of payment of service tax was on the appellant, as per section 68(2) read with Rule 2(1)(d)(G) of the Service Tax Rules, 1994 since service provider had no establishment in India. The appellant in the reply dated 7.03.2018 had submitted that the Syndicate Bank has its Headquarters in India and the London Branch is governed by the Headquarters situated in India and therefore, the liability to pay service tax, if any, shall be of the Syndicate Bank and thus Rule 2(1)(d)(G) would not be applicable in the present case. It was also contended that such payment was towards payment of interest. 3.2 Learned Counsel stated that during the period 2013-14 and 2014-15, the appellant had availed CENVAT Credit of service tax paid on the input service towards maintenance of their Washery Plant located at Maharashtra, Chhattisgarh, Andhra Pradesh & ....
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....ake up each issue for consideration: - 6.1 Corporate Guarantee: We note that as submitted by the Ld Counsel, this issue is no more res-integra, in view of the Supreme Court judgment in Commissioner, CGST vs Edelweiss Financial Services Lt, (supra). The relevant paras are extracted hereinafter: "6. Mr. Rai Chandani then read paragraphs 8 and 9 of the judgment of the Tribunal, which are extracted below :- "8. The criticality of 'consideration' for determination of service, as defined in section 65B(44) of Finance Act, 1994, for the disputed-period after introduction of 'negative list' regime of taxation has been rightly construed by the adjudicating authority. Any activity must, for the purpose of taxability under Finance Act,1994, not only, in relation to another, reveal a 'provider', but also the flow of 'consideration' for rendering of the service. In the absence of any of these two elements, taxability under Section 66B of Finance Act, 1994 will not arise. It is clear that there is no consideration insofar as 'corporate guarantee' issued by respondent on behalf of their subsidiary-companies is concerned. 9. The reliance placed by Learned Authorised R....
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....t of interest and in absence of documentary proof, merely a statement by the taxpayer cannot be admitted as proof of fact. Further, I find that facilitation fee/Bank charges collected by the bank from the noticee for arranging External Commercial Borrowings is neither covered in the exclusion clauses or the negative list enumerated in Section 66D of the Act, w.e.f. 1st July 2012. Hence, the facilitation charges are taxable service and liable to Service tax. Further, the noticees' contention that an establishment of Syndicate Bank is also situated in India, hence, the activity of External Commercial Borrowings from Syndicate Bank, London does not attract leviability of Service Tax on noticee on Reverse Charge Mechanism. So, here it is only a question of shifting liability from noticee to Syndicate Bank in India. Being indirect tax, the burden of taxation is on the person availing/enjoying the service. So even it is presumed that an establishment of Syndicate Bank is situated in India, though the party remained silent in their reply to the said SCN on the fact that whether the raised service tax liability is being paid by the Indian establishment of Syndicate Bank. Hence, in such sit....