ri. - Del ), ,MANU/CE/0438/2014
D.N. Panda#Mathew John#Archana Wadhwa#Rakesh Kumar#452CE2050MiscellaneousMANU#STRD.N. Panda,Mathew John,Archana Wadhwa,TRIBUNALS2014-11-2640870,40872,40874,40873,40878,40871,17280,22913,21646,21649,22531,22545,40900 -->
MANU/CE/0438/2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Final Order No. ST/A/53737/2014-CU(DB) and Misc. Order No. ST/188/2011, in Appeal Nos. ST/866/2008 & ST/828/2010
Decided On: 23.09.2014
Appellants: Microsoft Corporation (I) (P) Ltd. Vs. Respondent: Commr. of S.T.
Hon'ble Judges/Coram:
D.N. Panda, Member (J), Mathew John, Member (T), Archana Wadhwa, Member (J) and Rakesh Kumar ORDER
D.N. Panda, Member (J)
1. Being aggrieved by the order of adjudication dated 23-9-2008, the appellant came in Appeal to Tribunal raising the principal grievance that the service provided by the Appellant in terms of Agreement dated 1-7-2005 to the foreign principal is not 'Business Auxiliary Service' and not taxable u/s 65(105)(zzb) read with Section 65(19) of Finance Act, 1994 (hereinafter referred to as "the Act") since such services were exported under the provisions of Export of Service Rules, 2005 and immune from service tax. Further grievance was that the activity of repair and maintenance of software was not taxable prior to 7-10-2005. So also the Adjudication was time barred and the Appellant was entitled to Cum-tax benefit and Cenvat credit. It was also agitated that the appellant was not liable to penalty. With all these grievances prayer of the Appellant was to set aside the order of adjudication while Revenue opposes the same.
Allegations made in Show Cause Notice (SCN)
1.1 Show Cause Notice (SCN) dated 24-4-2008 was issued to the appellant covering the period 9-7-2004 to 6-10-2005 making various allegations resulting in contravention of provisions of Section 67 and Section 69(1) read with Section 68 and Section 73 of the Act made by the appellant. It was alleged that there was failure of the appellant to seek registration as well as gross value of taxable service provided were incorrectly stated and the appellant failed to deposit service tax into the Government account as required by Section 66 of the said Act. It was further alleged that there was failure to remit the service tax leviable within the stipulated time of the service rendered as required by Section 68 of the Act/read with Rule 6 of the Service Tax Rules, 1994 and Service Tax at applicable rates as stipulated under provisions of the aforesaid Act remained unpaid. It was further alleged that there was failure to pay the cess as was leviable under respective law and the appellant had deliberately suppressed material facts from the Department to intentionally evade payment of Service Tax and has intentionally and willfully suppressed the facts of receiving value of taxable service rendered and did not pay service tax and also did not file the required return under law.
1.2 The SCN further pointed out that the appellant's claim of export of service was baseless and without sanction of law when the Market Development Agreement dated 1-7-2005 entered into by the subsidiary appellant with the Microsoft Operations Pvt. Ltd. of Singapore required the appellant to identify the consumers in Indian Territory to provide marketing and technical support services on behalf of the foreign principal while making sale of Microsoft Products in India and maintaining the same.
Market promotion in India was essence of the contract
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