Cce, Kanpur vs M/S Kay Trading
- CitationAppeal No. ST/585/2009-CU(DB)
Ratio decidendi
The rule this decision rests on
Where service tax under the reverse charge mechanism is paid on commission paid to foreign-based agents for a period before 18.4.2006, when Section 66A of the Finance Act, 1994 came into force, no such tax is payable, and a refund claim for tax so paid must be allowed, following the Supreme Court's holding in Indian National Shipowners Association v. Union of India that the reverse charge mechanism operated only from that date.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of Order-in-Appeal No. 73/ST/APPL/KNP/2009 dated 13.4.2009 passed by the Commissioner (Appeals), Central Excise, & Service Tax, Kanpur)
For Approval & Signature :
Honble Mr. Justice G. Raghuram, President
Honble Mr. R.K. Singh, Member (Technical)
1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it would be released under Rule 27 of the 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?
4. Whether order is to be circulated to the Department Authorities?
CCE, Kanpur Appellant
Vs.
M/s Kay Trading Respondent
Appearance:
Shri B.B. Sharma, D.R. - for the Appellant
None - for the Respondent
Coram : Honble Mr. Justice G. Raghuram, President
Honble Mr. R.K. Singh, Member (Technical)
F. Order No.52344/2015
Per R.K. Singh :
Revenue has filed this appeal against order-in-appeal dated 13.4.2009 which set aside the order-in-original dated 7.11.2008 with consequential relief.
2. The facts of the case, briefly stated, are as under :
The respondent filed refund claim of Rs.1,70,608/- on the ground that it paid service tax under reverse charge mechanism on the amount of commission paid to the foreign based agents and that as per the judgement of the Supreme Court in the case of Indian National Shipowners Association Vs. Union of India 2010 (17) STR J57 (SC), service tax was not payable by them during the relevant period under reverse charge mechanism as Section 66A of the Finance Act, 1994 had not come into existence till then. The primary adjudicating authority rejected refund claim. The Commissioner (Appeals) cited the judgement in the case of Indian National Shipowners Association (supra) and held that service tax was not liable to be paid under reverse charge mechanism prior to 18.4.2006 while period involved in this case (6/2005 to 3/2006) was prior thereto and on that basis set aside the primary adjudicating authoritys order with consequential relief.
3. Nobody appeared on behalf of the appellant. Ld. DR conceded that in view of the judgement of the Supreme Court in the case of Indian National Shipowners Association (supra), holding that reverse charge mechanism became operation only with effect from 18.4.2006 when Section 66A was introduced in the Finance Act, 1994 the issue is no longer res integra and has been decided in favour of the respondent.
4. In view of the foregoing, we do not find any infirmity in the impugned order in appeal and accordingly dismiss the appeal filed by Revenue.
(Justice G. Raghuram)
President
(R.K. Singh)
Member (Technical)
RM
1
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