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Issues:
Waiver of pre-deposit and stay of recovery of dues in a case involving Business Auxiliary Service (BAS) and payment of commission to foreign commission agents during specific periods. Detailed Analysis: Issue 1: Liability of the Appellant for Service Tax on BAS The Commissioner held that the appellant was liable to pay service tax on BAS received from foreign commission agents during the period 9-7-04 to 31-10-05. This decision was based on the Notification No. 8/04-S.T. dated 9-7-04, which restricted the exemption available to BAS to the 'sale or purchase of agricultural products.' The Commissioner also noted the introduction of sub clause (iv) to Rule 2(1)(d) of the Service Tax Rules, 1994, which made a person receiving services from a non-resident without an office in India liable to pay service tax. The appellant had already paid a significant amount towards service tax and education cess, but the Commissioner confirmed the demand, imposed penalties, and demanded applicable interest. Issue 2: Application for Waiver and Stay The appellant's counsel argued that the Circular No. 36/4/01-S.T. clarified that services provided beyond India's territorial waters were not subject to service tax during the relevant period. The counsel cited several Tribunal decisions where pre-deposit was waived or recovery stayed for service tax from foreign service providers with no office in India before 18-4-06. The counsel contended that the demand was time-barred and should be waived based on the Tribunal's consistent views in similar cases. Issue 3: Judicial Interpretation and Precedents The Tribunal noted various decisions indicating that prior to the introduction of Section 66A of the Act on 18-4-06, services provided by non-residents were not subject to service tax. A significant ruling in M/s. Hindustan Zinc Ltd. v. CCE clarified that taxable services provided by non-residents without an office in India were taxable from 1-1-05. The Tribunal found ambiguity regarding the liability for service tax on services received from abroad by entities in India during the material period. The Supreme Court's judgment in a different case involving KSEB upheld the liability of the Indian entity for service tax based on the specific agreement between the foreign service provider and KSEB. Conclusion: Considering the lack of clarity on the liability for service tax during the material period and the appellant's belief that no tax was payable, the Tribunal allowed the application for waiver and stay. The Tribunal emphasized the plea of limitation and the partial discharge of tax liability by the appellant before the show cause notice. Therefore, the Tribunal ordered the waiver of pre-deposit and stayed the recovery of dues until the final disposal of the appeal.
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