2011 (4) TMI 222 - AT - Service Tax

Demand - Online information and database access or retrieval service - Rule 2(d) (iv) of the Service Tax Rules, 1994 - Before enactment of Section 66A it is apparent that there was no authority vested by law in the respondents to levy service tax on a person who is resident in India, but who received services outside India - Rule 2(1) (d) (iv) of the Service Tax Rules, 1994 read with Section 66-A of the Finance Act, 1994, is effective only from 18.4.2006 - The service in this case has been rendered in 2004 and hence the appellants were not liable to pay service tax. When the demand of Service Tax is not sustainable there in no question of imposing any penalty and charging of any interest - Decided in favour of the assessee

Summary

Issues:
1. Interpretation of Rule 2(d)(iv) of the Service Tax Rules, 1994 regarding liability to pay service tax for services received from outside India.
2. Applicability of Section 66-A of the Finance Act, 1994 on the reverse charge mechanism for service tax.
3. Determination of service tax liability for services received in India from a non-resident service provider.
4. Imposition of penalties under sections 76, 77, and 78 of the Finance Act, 1994.

Analysis:
1. The case involved a service provider who had not paid service tax on certain expenses related to online information and database access services incurred in foreign currency. The issue revolved around whether the service provider was liable to pay service tax under Rule 2(d)(iv) of the Service Tax Rules, 1994, considering the nature of the services provided and the residency status of the service provider.

2. The Tribunal noted that a show cause notice was issued to the service provider, culminating in an order confirming the demand for service tax along with interest and penalties. The main contention was whether the service recipient in India was liable to pay service tax for services received from a non-resident service provider, particularly concerning the applicability of Section 66-A of the Finance Act, 1994, which introduced a reverse charge mechanism for service tax.

3. The Commissioner (Appeals) decision favored the respondents, citing a judgment that highlighted the significance of Section 66-A in determining the liability of Indian recipients for service tax on services received from abroad. The Tribunal emphasized that Section 66-A, effective from 18.4.2006, clarified the tax liability of service recipients in India from non-resident providers, and this provision could not be applied retrospectively. Therefore, the appeal by the Revenue was rejected based on the non-retrospective application of Section 66-A.

4. The Revenue attempted to distinguish a previous judgment based on the location of service receipt, but the Tribunal found no merit in this argument. The decision reinforced that the liability to pay service tax for services received in India from non-resident providers was governed by the provisions of Section 66-A introduced in 2006. Consequently, the appeal was dismissed, and the stay petition was also disposed of accordingly.