Lhek “kqYd,oa dsUnzh; mRikn “kqYd vk;qDrky;] dsUnzh; mRikn “kqYd Hkou] jsl dkslZ] fjax jksM jktdksV-360001 office of the commisioner of customs & central excise race course ring road, rajkot-360001
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- Bu səhifədəki naviqasiya:
- Ekwy vkns”k Lka. Order in Original NO. 53/JC/2011 vkns”k dh frfFk Date of Order
- Brief facts of the case
- UNITECH LIMITED Vs COMMISSIONER OF SERVICE TAX, DELHI
- Sub: Applicability of service tax on taxable services provided by a non-resident or a person located outside India to a recipient in India-reg.
| OIO No. 53/JC/2011 dated 14/12/2011
1- ;g izfrfyfi ml O;fDr dks futh mi;ksx ds fy, fu%'kqYd nh xbZ gSA ftls ;g tkjh fd;k x;k gSA 1. This copy of order is granted free of charges to the person to whom it is issued.
2. Any person deeming himself aggrieved by this order may appeal against this order to the Commissioner (Appeals), Customs & Central Excise, Central Excise Bhavan, Race Course Ring Road, Rajkot. 3- vihy dk QkeZ ,l-Vh-&4 nks izfr esa Hkjk tk, ,oa mlds lkFk fu.kZ; dh izfrfyfi ;k lsokdj fu;e] 1994 dh dye 8 esa fofufnZ"V vuqlkj vkns'k ds fo:) vihy dh izfrfyfi gksuh pkfg,A 3. The Appeal should be filed in form ST-4 as per Rule 8 of Service Tax Rules, 1994 and it shall be signed by the person as specified in Rule 3 (2) of the Central Excise (Appeals) Rules, 2001. 4- ikVhZ }kjk bl vkns'k dks O;fDrxr izkIr fd, tkus dh rkjh[k ls ;k Mkd }kjk izkfIr dh rkjh[k ls rhu eghus ds vanj vihy Qkby dh tkuh pkfg,A 4. The appeal should be filed within three months from the date of receipt of this order. [Section 85 of the Finance Act, 1994]. 5. blds lkFk fuEufyf[kr dkxtkr gksuh pkfg,A 5. The appeal should be accompanied by: ¼v½ ,slk vkns'k dh izfrfyfi ;k nwljs dh d izfrfyfi ftl ij uhps n'kkZ, v?khu fu/kkZfjr dksVZ dh Qhl LVsEi gksuh pkfg,A (a) Copy of this order which should bear court fee stamp as prescribed under Schedule 1 of Article 6 of the Court Fee Stamp Act, 1870, as under: (i) ;fn lCtsDV eSVj dh jde ;k ewY; ;k ewY; 50 :i; ;k 50 :i;s ls de gks rks :i;s 00-25 gksA
(ii) ;fn lCtsDV eSVj dh jde ;k ewY; ;k ewY; 50 :i; ;k 50 :i;s ls v/khd gks rks :i;s 00-50 gksA (ii) If such amount exceed Rs.50, then, Rs.0.50 paisa. ¼c½ vihy izfrfyfi ftl ij :i;s 2-50 dh dksVZ Qh LVsEi gksuh pkfg,A (b) A copy of the appeal should also bear a court fee stamp of Rs.2.50. 6. lsok dj ]naM ¼isuYVh½ vkfn ds Hkqxrku dk izek.k A Proof of payment of duty, penalty etc., should also be attached to the original form of appeal. Brief facts of the case: M/s. Surya Ceramics, 8-A National Highway, Dhuva, Wankaner, hereinafter referred to as "the noticee") are engaged in the manufacture of Ceramic Tiles falling under Chapter 69 of the Schedule to the Central Excise Tariff Act, 1985 and are holding Central Excise Registration No. AAHFS3995FXM001.
"Erection, Commissioning or Installation" means any service provided by a commissioning and installation agency, in relation to-
8. A statement dated 22.01.2006 of Shri Liladharbhai Shivjibhai Patel Partner of the Notices firm was recorded under Section 14 of the Central Excise Act, 1944 before the Superintendent (PI), Central Excise Division - II, Rajkot, wherein he stated that they have purchased various machineries from China, Hongkong under various contract viz., (1)Contract No. CM24185B dated. 18.09.2004 for purchase of Dryer Loading machine W2700L3M, Biscuit Kiln W2700mm/L71.610m, Biscuit Kiln Unloading machine W2700L2.5M, Gloss Kiln unloading machine W2700L6.5M, Gloos Kiln W2700mm/L69.440m and Gloss Kiln unloading machine W2700L2.5M (2) Contract/proforma Invoice No. CM 25026 dated.31.01.2005 for purchase of YP Press, Take off Table, magnetic Plate and Magnetic Control Board for mould; that third machine imported under contract No. KEXINDA SC572-2005 dated. 10.01.2005 was very small no technicians were required, that though they had installed the machineries with the help of their workers the foreign suppliers sent one or two person for the purpose of inspection and supervision of machineries so that the installation of the machineries could be done in proper way; that installation started in May 2005 and completed in June 2005, that the technicians were accommodated in hotel and they had not paid any additional amount; that they have made all the transaction through Bank; that the amount as per contract/invoice was only paid, that the amount shown in contract included the installation charges, that copies of debit advice issued by bank would be submitted within two days, that installation of machinery stated at st. no 1 was done during May-2005 to June-2005 and another machinery was installed thereafter, that installation if all machineries was completed in November, 2005. 9. The definition of "Erection, Commissioning and Installation Agency cover all services and not restricted to advice, consultancy and technical assistance. Thus, it will include not only the advice, consultancy or technical assistance provided in erection, commissioning and installation but will also include the services rendered in respect of erection, commissioning and installation. From above, it appears that the above service provider is not having any office or establishment or permanent address in India and therefore, the noticee was liable to pay the Service Tax on installation services received by them, as per Rule 2 (d) (iv) of the Service Tax Rules, 1994. The details of machineries, as per contract and the condition of installation, invoices and payment made; are enclosed herewith as Annexure-A.
DEFENCE SUBMISSION:
DISCUSSION AND FINDINGS: 15. I have carefully gone through the facts of the case on record including the show cause notice and the various defence replies. I find that the noticee had imported machineries which were installed/ commissioned by technicians of the suppliers who were not having office/establishment in India, before 18.04.06. It appeared that the services provided falls under taxable service of "Erection, Commissioning or Installation, as defined in Section 65 (39a) of the Finance Act, 1994. It appeared that the noticee being a service recipient was liable to pay tax on the services received as provided under Rule 2 (1) (d) (iv) of the Service Tax Rules, 1994. 16. It is seen that the period of provision of service was prior to the period 18.4.2006. The issue whether the tax liability on taxable services provided by a non resident or a person located outside India to a recipient in India on reverse charge basis is applicable from 1.1.2005 or from 18.4.2006 has been clarified by the Board instruction from file no F.No 276/8/2009-CX 8A dated 26.9.2011. “Sub: Applicability of service tax on taxable services provided by a non-resident or a person located outside India to a recipient in India-reg. Kind attention is invited to instruction F No. 275/7/2010-CX8A, dated 30.6.2010, wherein the Board had communicated its view that services tax on a taxable service received in India, when provided by a non-resident/person located outside India, would be applicable on reverse charge basis with effect from 1.1.2005, and that the ratio of judgement in M/s Indian National Shipowners Association (INSA) case [2009 (13) STR 235 (Bom)] would not apply to such cases. Further, direction was issued to field formations to defend the levy of service tax on such services for the period on or after 1.1.2005, as post INSA judgment, it has been held by the High Courts/Tribunal in a large number of cases, applying ratio thereof, that service tax on such services is leviable only w.e.f. 18.4.2006. However, the appeals filed by the department before the Hon’ble Supreme Court, for defending the levy of service tax on such services w.e.f. 1.1.2005, have been dismissed recently (subsequent to the issuance of said instruction dated 30.6.2010) in the following cases.
Further, Review Petition No. 1686 of 2011 filed in the case of Bhandari Hosiery has also been dismissed by the Hon’ble Supreme Court vide order dated 18/8/2011. 2. In view of the aforementioned judgments of the Hon’ble Supreme Court, the service tax liability on any taxable service provided by a non resident or a person located outside India, to a recipient in India, would arise w.e.f. 18.4.2006, i.e., the date of enactment of section 66A of the Finance Act, 1994. The Board has accepted this position. Accordingly, the instruction F No. 275/7/2010-CX8A, dated 30.6.2010 stands rescinded.” 17. As discussed above I find that in this case, the services were provided prior to the period of 18.04.06 i.e. prior to enactment of Section 66A. Hence as clarified by the Board instruction quoted above no demand of service tax arises in this case and the show cause notice needs to be setaside. 18. In view of the above discussion, I pass the following order:
I drop the proceedings initiated vide show cause No. V.RJT-II/AR-WNR/Addl.Commr./98/2007 dated 07.08.07. (M. GNANASUNDARAM) JOINT COMMISSIONER
M/s. Surya Ceramic, National Highway 8 A, Dhuva - Wankaner. Copy to: (i) The Assistant Commissioner (RRA), Central Excise, HQ, Rajkot. (ii) The Assistant Commissioner, Central Excise Division-ll, Rajkot. (iii) The Superintendent, Central Excise AR- Wankaner. (iv) Guard file. Page of Yüklə 58,05 Kb. Dostları ilə paylaş:
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