2004 (6) TMI 9 - AT - Service Tax

Summary

Issues:
1. Stay application for waiver of pre-deposit and stay of operation of the impugned order.
2. Whether the applicant is liable to pay service tax for receiving services from a foreign company.
3. Whether the running royalty paid to the foreign company constitutes a taxable service.

Analysis:
1. The stay application was filed seeking waiver of pre-deposit and stay of the operation of the order demanding service tax, interest, and penalty. The Commissioner (Appeals) confirmed the demand for service tax, interest, and penalty on the applicant for payments made to a foreign company for technical know-how and royalty. The Tribunal found the issues raised in the application to be debatable, especially regarding the obligation of a service receiver to discharge service tax based on the agreement with the foreign service provider. The Tribunal acknowledged that the applicant was not an agent or authorized person of the foreign company in India, making it questionable whether the applicant could be considered as such under Rule 6 of the Service Tax Rules. The Tribunal noted that the applicant presented a strong prima facie case, leading to the decision to waive the pre-deposit of the tax demanded and stay the recovery pending the appeal's disposal.

2. The applicant argued that as a receiver of services from a foreign company, they should not be liable to pay service tax under the Finance Act, 1994. The applicant contended that service tax is a levy on the service provider and not the customer, citing a Supreme Court decision. The applicant emphasized that they were only a service receiver and should not be responsible for the service tax on services provided by the foreign company. Additionally, the applicant questioned whether the technical know-how provided by the foreign company constituted a service by a consulting engineer and whether the running royalty could be considered a taxable service. The Tribunal found these arguments to raise significant legal questions, justifying the waiver of pre-deposit and the stay of recovery during the appeal process.

3. The Tribunal considered the nature of the payments made by the applicant to the foreign company for technical know-how and royalty. The Tribunal analyzed whether these payments constituted taxable services under the definition of consulting engineer services. The Tribunal also examined the applicability of Rule 6 of the Service Tax Rules concerning the payment of service tax by a person on behalf of a non-resident service provider operating from outside India. The Tribunal's decision to waive the pre-deposit and stay the recovery of the demanded service tax was based on the debatable nature of these issues and the applicant's strong prima facie case, leading to an expedited hearing of the appeal.

This detailed analysis of the judgment from the Appellate Tribunal CESTAT (Mumbai) highlights the key legal arguments, interpretations, and decisions made regarding the waiver of pre-deposit and the stay of recovery in a service tax dispute involving payments made to a foreign company for technical know-how and royalty.