2010 (12) TMI 152 - AT - Service Tax

Charging of service tax from the service recipient - service providers from whom the Respondent had received the taxable services are not the persons having office or establishment in India - in case of Indian National Shipowners Association held that for the period prior to 18.4.2006, the service tax liability cannot be fastened on the service recipient in India in a situation where taxable service was provided by a non-resident person not having office/establishment in India Appeal dismissed

Issues Involved:
1. Taxability of service procuring export orders as Business Auxiliary Service.
2. Liability of service recipient to pay service tax on commission paid to overseas agents.
3. Interpretation of Rule 2(1)(d)(iv) of the Service Tax Rules, 1994.
4. Applicability of Section 66 A of the Finance Act, 1994 for charging service tax from service recipients in India.
5. Impact of judgments by the Bombay High Court and the Supreme Court on service tax liability.

Issue 1: Taxability of Service Procuring Export Orders:
The case involved a dispute regarding the taxability of the service of procuring export orders as Business Auxiliary Service under the Finance Act, 1994. The respondents, manufacturers of leather articles, had appointed overseas commission agents for marketing their products. The department contended that the service of procuring export orders was taxable, and a show cause notice was issued for demand of service tax. The Dy. Commissioner confirmed the service tax demand, interest, and imposed penalties. The respondents appealed against this order.

Issue 2: Liability of Service Recipient to Pay Service Tax:
The department argued that under Rule 2(1)(d)(iv) of the Service Tax Rules, 1994, the respondents, as service recipients, were liable to pay service tax on the commission paid to overseas agents. The Commissioner (Appeals) dismissed the department's appeal and allowed the respondents' appeal, citing the absence of a provision for charging service tax on services received from abroad by a person in India without an office or establishment in India during the disputed period.

Issue 3: Interpretation of Service Tax Rules:
The dispute revolved around the interpretation of Rule 2(1)(d)(iv) of the Service Tax Rules, 1994, concerning the liability of the service recipient to pay service tax on commission paid to overseas agents. The Commissioner (Appeals) based the decision on the absence of a relevant provision in the Finance Act, 1994 for charging service tax on such services received from abroad before a specific date.

Issue 4: Applicability of Section 66 A of the Finance Act, 1994:
The Tribunal deliberated on the applicability of Section 66 A of the Finance Act, 1994, which allowed for charging service tax from service recipients in India for taxable services received from non-residents without an office or establishment in India. The Tribunal noted that this provision was introduced on a specific date and held that service tax liability could not be imposed on the service recipient in India for the period before the provision's enactment.

Issue 5: Impact of Judgments by Bombay High Court and Supreme Court:
The Tribunal considered the judgments by the Bombay High Court and the Supreme Court in the case of Indian National Shipowners Association, which upheld that service tax liability could not be fastened on a service recipient in India for services provided by non-residents without an office or establishment in India before the introduction of Section 66 A. The Tribunal dismissed the Revenue's appeal based on this legal precedent.

In conclusion, the Tribunal dismissed the Revenue's appeal, affirming that the service tax liability could not be imposed on the service recipient in India for services received from non-residents without an office or establishment in India before the enactment of Section 66 A. The decision was based on the legal interpretations provided by the judgments of the Bombay High Court and the Supreme Court in similar cases.

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