SAMCOR GLASS LTD. Vs. CCE

JUDGEMENT

(1.) THE applicant seeks to challenge the order of the Commissioner (Appeals) made on 15.01.2007 upholding the orders -in -original by which the adjudicating authority had confirmed the demands of Service Tax of Rs. 1,49,347/ - in ST/Appeal No. 223 of 2007 and Rs. 17,330/ - in ST/Appeal No. 224 of 2007; and imposed penalty of the like amounts under Sections 76 and 78 respectively.

(2.) THERE is no dispute over the fact that, the services of foreign service provider were received in India by the present applicant. The principal contention, which is raised before us for seeking waiver of pre -deposit in the stay applications made in these two appeals, is that, since the Notification under Section 68(2) of Chapter V of the Finance Act, 1994 was issued on 31st December, 2004 (Notification No. 36/2003 -Service Tax), which came into force on 01.01.2005, by which taxable services were notified for the purposes of Section 68(2), there was no liability on the part of the applicant in respect of taxable services, if any, received from a foreign service provider to the applicant during the period prior to the coming into force of the said Notification.

(3.) RELIANCE was placed, in support of this submission, on the decision of the Single Member Bench rendered on 01.02.2007 in Service Tax Appeal No. 263 of 2006 in Aditya Cement v. Commissioner of Central Excise, Jaipur -II reported in 2007 -TIOL -236 -CESTAT -DEL, in which, in the context of the said Notification and Rule 2(d)(iii) of the Service Tax Rules, it was held that, Rule 2(d)(iii) itself "may not suffice Revenue to direct" the appellant to discharge his Service Tax liability as service receiver, and if the contention of the Revenue was accepted, then there was no necessity for the Government to issue the said Notification notifying the Service Tax receiver from non -resident provider. It was held that, by issuing that Notification, the Central Government intended to tax the service receiver w.e.f. 01.01.2005, and that, as a corollary, no Service Tax was payable by this category prior to 01.01.2005. Reliance was also placed on the decision of a Division Bench in another Appeal decided on 22.02.2007 in Ispat Industries Ltd. v. CCE, Raigad reported in 2007 -TIOL -399 -CESTAT -MUM, in which it was held that, the taxable service was notified in the official gazette under Sub -section 68(2) only on 31.12.2004 by the Notification No. 36/2004 -ST w.e.f. 01.01.2005 and Service Tax was not leviable on the receiver for the period prior to 01.01.2005.