The Commissioner of CGST Mumbai West Versus M/s. JMSM Satellite (Singapore) PTE Limited
Service Tax
2018 (10) TMI 319 – BOMBAY HIGH COURT – 2019 (368) E.L.T. 61 (Bom.)
BOMBAY HIGH COURT – HC
Dated:- 1-10-2018
CENTRAL EXCISE APPEAL NO. 243 OF 2017
Service Tax
M.S. SANKLECHA & RIYAZ I. CHAGLA, JJ.
Mr. M. Dwivedi with Mr. Sham Walve, for the Appellant.
Mr. V. Sridharan, Sr. Advocate with Mr. Prakash Shah i/b. PDS Legal, for the Respondent.
P.C:
Mr. Sridharan, learned Senior Counsel, appears for the Respondent and undertakes to file a Vakalatnama within a week from today.
2. This Appeal under Section 35G of the Central Excise Act, 1944 (the Act), challenges the order dated 31st March, 2017 passed by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal).
3. Mr. Dwivedi, on behalf of the Revenue tenders the following reframed question of law, for our consideration:
“Whether in the facts and circumstances of the case, the Tribunal was justified in
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rovide any output service in India.
6. The Respondent by its reply dated 20th March, 2015 resisted its show cause notice. However, the Commissioner of Service Tax by an order dated 28th August, 2015 confirmed the show cause notice. This, on the ground that the Respondent is not a service provider and, therefore, not entitled to Cenvat Credit. It proceeds on the basis that it was the Singapore entity which provides the services and not the Indian entity which took the Cenvat Credit. Thus, the Respondent was not entitled to the Cenvat Credit.
7. On Appeal, the Tribunal by the impugned order dated 31st March, 2017, held on facts that the authorities under the Act have proceeded on the erroneous assumption that there are two different entities namely MSS Singapore and MSS India, when in fact, there is only one entity – namely – Respondent herein, which is located in Singapore and also has office in India. Thereafter, it holds that it is an undisputed fact that the Respondent herein, was
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nt of having transacted in a 'taxable service', should such a registrant keep itself out of the purview of the tax net, the obligation to determine liability to tax shifts tot he 'proper officer'. Having registered itself under the appropriate provision, discharged its tax liability, such as it was, and complied with the obligation to submit returns, attempting a foray of the fundament by the two lower authorities is not only not sanctioned by law but is akin to excavation of the foundation after the superstructure is erecteda pointless exercise that only places impediments in the operations of a contributor to the foreign exchange reserves of the country and a provider of daily bread to thousands. With the registration and subsequent compliance with Finance Act, 1994 and Service Tax Rules, 1994, the appellant is clearly and undoubtedly within the ambit of CENVAT Credit Rules, 2004.”
9. The observations would apply in the present facts. Therefore, when specifica
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