2011 (6) TMI 739 - HC - Central Excise

Summary

Issues involved:
The issues involved in the present appeal are:
1. Whether the Tribunal erred in ignoring specific notifications related to service tax.
2. Whether service tax is applicable in India for services provided by a foreign service provider without an office in India.

Details of the judgment:
1. The appellant, engaged in manufacturing Ball and Roller Bearings, used the brand name "FAG" under a user agreement with a foreign entity. The Department claimed service tax liability under "Franchise Services" and issued a Show Cause Notice demanding service tax and penalties. The CESTAT allowed the appeal based on a Bombay High Court decision, stating that demanding service tax from the recipient before 18.4.2006 was not sustainable due to limitations.
2. The matter was challenged before the High Court, which observed the introduction of Section 66A in the Finance Act, 1994, which shifted the liability for service tax in certain situations. However, for the period before 18.4.2006, when Section 66A was not in force, the Court relied on the Bombay High Court decision, stating that the recipient of services outside India cannot be made liable for service tax. The Court emphasized that Rule 2(1)(d)(iv) of the Service Tax Rules, in the absence of Section 66A, did not authorize the levy of service tax on Indian recipients of services from non-residents.
3. The High Court noted the Delhi High Court's decision in a similar case, where the tax demand from an Indian recipient of architectural services from a non-resident was deleted. Based on judicial pronouncements and the absence of legal authority before the enactment of Section 66A, the High Court upheld the Tribunal's decision to set aside the service tax demand. The Court dismissed the Tax Appeal, stating that the charging section making the service recipient liable for service tax was introduced only with the enactment of Section 66A from 18.4.2006, making any demand before that period impermissible.

Conclusion:
The High Court dismissed the Tax Appeal as the issues raised were identical to previous decisions, affirming that the demand for service tax prior to the introduction of Section 66A was not sustainable. The Court upheld the Tribunal's ruling in favor of the assessee, emphasizing the legal limitations on taxing Indian recipients for services provided by non-residents before the statutory provision came into effect.