2007 (4) TMI 26 - AT - Service Tax

Demand(Service tax) - Alleged that appellant received ORC from the foreign airlines are covered under business auxiliary service and accordingly demand were made alongwith penalty - Held that allegation was correct and appellant liable to pay service tax and penalty

Issues Involved:
1. Jurisdictional objection regarding the issuance of the show-cause notice (SCN).
2. Demand of service tax on "Overriding Commission" (ORC).
3. Claim of export of service and applicability of Notification No. 21/2003-S.T.
4. Invocation of the extended period of limitation under Section 73(1) of the Finance Act, 1994.

Issue-wise Detailed Analysis:

1. Jurisdictional Objection:
The appellants contended that the SCN was issued by the Additional Director-General of Central Excise Intelligence without jurisdiction, as "Central Excise Officer" was substituted for "Asst. Commissioner of Central Excise or Dy. Commissioner of Central Excise" in Section 73 of the Finance Act 1994 only w.e.f. 13-5-2005. They argued that during the period of dispute (July 2003 to November 2004), only the Asst. Commissioner or Dy. Commissioner had jurisdiction to issue SCN. This objection was overruled by the Tribunal, stating that on the date the SCN was issued, the Central Excise Officer duly authorized for the purpose had jurisdiction, and the Additional Director-General of Central Excise Intelligence was empowered to issue such notice.

2. Demand of Service Tax on ORC:
The demand of service tax was on ORC received by the appellants in Indian currency from Malaysian Airlines during the disputed period under an Agreement dated 2-11-2000. The appellants were appointed as "General Sales Agent" (GSA) for India by Malaysian Airlines. The services rendered by the appellants fell under "Business Auxiliary Service" exigible to service tax w.e.f. 1-7-2003. The appellants had not paid service tax on ORC received, despite being aware of the tax liability. The ORC was paid in Indian currency and credited to the appellants' bank account. The Tribunal found that the services were rendered in India and the payments were received in Indian currency, thus attracting service tax.

3. Claim of Export of Service and Applicability of Notification No. 21/2003-S.T.:
The appellants claimed that their services constituted an export of service and were not taxable, relying on the Board's Circular No. 56-5-2003 and Notification No. 21/2003-S.T. They argued that the commission received in Indian currency should be deemed as receipt in convertible foreign exchange, citing the apex court's judgment in J.P. Boda & Co. Pvt. Ltd. v. CBDT. However, the Tribunal held that the services were provided and received in India, and the payments were in Indian currency, not convertible foreign exchange. Thus, the benefit of Notification No. 21/2003-S.T. was not applicable.

4. Invocation of Extended Period of Limitation:
The appellants argued that the extended period of limitation under Section 73(1) was not applicable as the requirements were not fulfilled. The Tribunal noted that there was evidence of the appellants' knowledge of their tax liability and their omission to file returns and pay service tax. The extended period was rightly invoked due to suppression of facts and contravention of Sections 68, 69, and 70 of the Finance Act, 1994. The Tribunal distinguished the cited cases as they were not service tax cases and had different provisions under Central Excise law.

Conclusion:
The Tribunal upheld the entire demand of service tax along with interest but reduced the penalty under Section 78 of the Finance Act, 1994, to Rs. 10,00,000/-. The penalty under Section 76 was sustained. The appeal was dismissed with the modification of the penalty.

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