Custom, Excise & Service Tax Tribunal
M/S Intas Pharmaceuticals Ltd vs Commissioner Of Service Tax, Ahmedabad on 15 October, 2015
In The Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench At Ahmedabad
Appeal No.ST/199/2008-DB
[Arising out of OIA No.103/2008(STC)/ID/Commr.(A)/Ahd, dt.27.10.2008, passed by Commissioner of Service Tax, Ahmedabad]
M/s Intas Pharmaceuticals Ltd Appellant
Vs
Commissioner of Service Tax, Ahmedabad Respondent
Represented by:
For Appellant: Shri Jigar Shah, Advocate For Respondent: Shri T.K. Sikdar, Authorised Representative For approval and signature:
Honble Mr. P.K. Das, Member (Judicial) Honble Mr. P.M. Saleem, Member (Technical)
1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen the order?
4. Whether order is to be circulated to the Departmental Yes authorities?
CORAM:
HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) HONBLE MR. P.M. SALEEM, MEMBER (TECHNICAL) Date of Hearing/Decision: 15.10.2015 Order No. A/11508/2015, dt.15.10.2015 Per: P.K. Das The Appellant filed this appeal against the rejection of refund claim of Rs.65,006.00. The Adjudicating authority rejected the refund claim on merit and on limitation. By the impugned order, the Commissioner (Appeals) upheld the Adjudication order on merit and it has been held that the original refund claim was filed within time.
2. After hearing both the sides and on perusal of the records, we find that the Appellant paid the amount to the foreign service provider for providing Technical Testing and Analysis Service on 03.07.2006. There is no dispute that the Appellant is liable to pay Service Tax under the reverse charge mechanism w.e.f. 19.04.2006 under Section 66A of the Finance Act, 1994. The Appellant claimed that the tax is not payable under Rule 3(1)(ii) of the Taxation of Services (provided from outside India and received in India) Rules, 2006. The proviso to the said Rule states that where such taxable service is partly performed in India, it shall be treated as performed in India and the value of such taxable service shall be determined under Section 67 of the Act and the Rules made thereunder. The Commissioner (Appeals) observed that the service provider provided Technical Testing and Analysis Service in abroad. The Commissioner (Appeals) denied the benefit of the said rules on the ground that if the services are partly performed in India and it would be governed by the proviso made under Section 67 of the said Act, otherwise, in both the cases, whether fully performed or partly performed, it shall be treated as performed in India. We find that the proviso to Rule 3(1)(ii) of Taxation of Services Rules, 2006 will be applicable in a case the service is partly performed in India. In the present case, there is no dispute that the service was provided outside of India and therefore, they are not covered under the said proviso. This view is supported by the decision of the Tribunal in the case of CCE Vs Lear Automotive India (P) Ltd 2014 (35) STR 614 (Tri-Mum), wherein the Revenues appeal was rejected. The findings of the Tribunal in the case of Lear Automotive India (P) Ltd (supra) are as under:-
12.?We find that the taxable service provided from outside India and received in India, shall, in relation to taxable specified in sub-rule (ii) be such services as are performed in India. We find the Technical Testing and Analysis service covered under sub-clause (zzh) of Section 65(105) of the Finance Act, as specified in Rule 3 above. The contention of the assessee is that the entire test was performed outside India. In these circumstances as per the first proviso to Rule 3(ii) for taxable service if it is partly performed in India, it is to be treated as performed in India. We find that there is no allegation in the show cause notice of evidence on record to show that part of the service was performed in India. In view of this we find that as per the provisions of Rule 3 of Import of Service Rules, the Service Tax is not leviable on the Technical testing and analysis. In these circumstances, we find no infirmity in the impugned order whereby the demand in respect of Technical testing and analysis is set aside. We therefore find no merit in the appeal filed by the Revenue.
3. In view of the above discussion, we set aside the impugned order on merit and the Adjudicating authority is directed to allow the refund to the Appellant in accordance with law. The appeal filed by the Appellant is allowed.
(Dictated & Pronounced in Court)
(P.M. Saleem) (P.K. Das)
Member (Technical) Member (Judicial)
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