Custom, Excise & Service Tax Tribunal
M/S.Tei Technologies Pvt. Ltd vs Cc & Ce, Noida on 16 September, 2014
IN THE CUSPTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing/ Decision:16.09.2014
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Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982?
2
Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether their Lordships wish to see the fair copy of the Order?
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Whether Order is to be circulated to the Departmental authorities?
Service Tax No.56446 of 2013 & in
Appeal No.ST/56023 of 2013-CU(DB)
[(Arising out of Order-in-Appeal No.371/ST/Appl/Noida/2012 dated 28.11.2012 passed by the Commissioner (Appeals), Customs & Service Tax, Noida (U.P.)]
M/s.TEI Technologies Pvt. Ltd. Appellants
Vs.
CC & CE, Noida Respondent
Appearance:
Shri R.C. Chaudhary, Advocate for the appellant. Shri Suchitra Sharma, DR for the respondent. Coram:
Honble Smt. Archana Wadhwa, Member (Judicial) Honble Mr. Rakesh Kumar, Technical Member Final Order No. 53669/Dated16.09.2014 Per Archana Wadhwa:
The prayer is to dispense with the condition of pre-deposit of service tax of Rs.18,42,561/- and penalty of identical amount under various sections of the Finance Act, 1994.
2. The demand stands confirmed for the period 2005-06 to 2006-07 on the finding that they have received Management services from a foreign consultant and on reverse charge basis, he has to pay the service tax. The appellants contention is that though they have received the services but they have not made any payment to the foreign service provider, in which case, no service tax liability would arise against them. On the other hand, Revenue has relied upon the Explanation introduced to Rule 6 of Service Tax Rules, 1994, which provide that if any provisions for the payments have been made in the books of accounts, it has to be treated as the consultation for the service. The said explanation was added w.e.f. 10.05.2008. The lower authorities have held that though the period in the present case is prior to 10.05.2008, the explanation added by way of amendment has to be held as retrospective.
3. After hearing both the sides, we find that the Tribunal in the case of Sify Technologies Ltd. Vs. CCE reported in 2011 (21) STR 252 (T) has held that the explanation introduced in Rule 6 of the Service Tax Rules, 1994 is not retrospective even though it uses the expression for removal of doubts , Revenue has not been able to show us any contra of decisions. As such, in pursuance of the above decision, we hold that the appellant has good prima facie case in its favour so as to allow the stay petition. We order accordingly.
4. At this stage, we note that the Commissioner (Appeals) has not examined the appellants contention that the payments have actually not been made to the foreign service provider. This fact requires factual verification for which the matter has to go back. We accordingly set aside the impugned order and remand the matter to the original adjudicating authority to verify the above stand of the appellant and to re-decide the issue again in the light of the judgement referred as above or any other judgement given on the issue involved. The appeal is thus allowed by way of remand. The stay petition also gets disposed of.
(Archana Wadhwa) Member (Judicial) (Rakesh Kumar) Member (Technical) Ckp.
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