2011 (4) TMI 240 - AT - Service Tax

Demand of service tax - Technical services recevied from a foreign service provider - Service Tax Rules, 1994 were amended with effect from 16.5.2005 vide Notification No. 23/2005-ST dated 07.6.2005 and consequently, Section 65 (105) of the Finance Act, 1994 - for doubt, the Hon ble High Court s decision makes it clear that reverse charge mechanism operating under Rule 2(1) (d) (iv) of the Service Tax Rules, 1994, is effective only from 18.04.2006. Therefore the demand of service tax for the period prior to 18.4.2006 under reverse charge or tax shift mechanism is not applicable.

Summary

Issues:
1. Interpretation of Service Tax Rules, 1994 regarding the levy of service tax on import of services.
2. Applicability of reverse charge mechanism under Rule 2(1)(d)(iv) of the Service Tax Rules, 1994.
3. Legal authority to levy service tax on Indian residents receiving services from abroad.
4. Effectiveness of the reverse charge mechanism from a specific date.

Analysis:

1. The case involved a dispute regarding the payment of service tax by M/s. Bosch Rexorth (India) Limited for technical services received from a foreign service provider in 2004-05. The issue revolved around the amendment of Service Tax Rules, 1994, and the subsequent levy of service tax on the import of services. The original adjudicating authority and the Commissioner (Appeal) had dropped the demand for service tax based on the timing of service charges. However, the Revenue contested this decision, arguing that the services were received in India, making the effective date of service tax levy from 01.01.2005.

2. The judgment referred to the decision of the Hon'ble High Court of Bombay in a similar case, emphasizing the enactment of Section 66A in the Finance Act, 2006, which authorized the levy of service tax on Indian residents receiving services from abroad. The Court clarified that the reverse charge mechanism under Rule 2(1)(d)(iv) of the Service Tax Rules, 1994, was effective only from 18.04.2006. Therefore, any demand for service tax prior to this date under the reverse charge mechanism was deemed inapplicable.

3. The legal position established by the Hon'ble High Court's decision highlighted the significance of Section 66A in enabling the taxation of services received from abroad by Indian residents. Before the enactment of Section 66A, there was no provision in the Act authorizing the levy of service tax on Indian recipients of services from outside India. The judgment clarified that the Indian recipient of taxable services was considered a service provider only after the enactment of Section 66A, indicating a shift in the taxation mechanism for such transactions.

4. Considering the legal framework and precedents cited, the Appellate Tribunal concluded that the appeal filed by the Revenue lacked merit. The Tribunal found no fault in the order of the Commissioner (Appeal) and rejected the Revenue's appeal. Additionally, the stay petition filed by the Revenue was disposed of in light of the judgment's decision. The Tribunal's pronouncement upheld the legal position established by the Hon'ble High Court and affirmed the inapplicability of the reverse charge mechanism for service tax demands before 18.04.2006.