2011 (3) TMI 763 - AT - Service Tax

Waiver of pre-deposit - scientific or technical consultancy service - There is no representation for the applicant/appellant despite notice, nor any request for adjournment - The services of the Russian company were received by the appellant, for which consideration was paid by the latter as per the terms and conditions of the contract - Prima facie, the department could claim to levy service tax on this amount under the head scientific or technical consultancy service - stay granted.

Summary

Issues involved:
1. Waiver of pre-deposit and stay of recovery in respect of service tax demand.
2. Classification of taxable services under "scientific or technical consultancy service" and "Intellectual property right service".
3. Validity of addendum changing the classification of taxable services.
4. Prima facie case for the appellant regarding the levy of service tax.

Analysis:

Issue 1: Waiver of pre-deposit and stay of recovery in respect of service tax demand
The appellant sought waiver of pre-deposit and stay of recovery for a service tax demand of Rs. 1,82,17,708. Despite no representation from the appellant, the Tribunal examined the records and noted that the matter had been adjourned at the applicant's request multiple times. Due to this, the Tribunal was not inclined to keep the stay application pending.

Issue 2: Classification of taxable services under "scientific or technical consultancy service" and "Intellectual property right service"
The original show-cause notice proposed recovering service tax under "Intellectual property right service" and "scientific or technical consultancy service" based on a contract with a Russian company. The appellant contested these demands, leading to an addendum changing the classification to only "scientific or technical consultancy service". The appellant argued that the department could not change the classification under Section 73(1) of the Finance Act, 1994. The Commissioner confirmed the demand of service tax against the appellant.

Issue 3: Validity of addendum changing the classification of taxable services
The Tribunal found a prima facie case for the appellant after reviewing the grounds of appeal and the stay application. The services received by the appellant from the Russian company included the transfer of technology and technical assistance, which could fall under "IPR service" and "scientific or technical consultancy service" respectively. The department's attempt to levy service tax under a single head on the entire amount paid was contested by the appellant with sustainable grounds, leading the Tribunal to grant waiver of pre-deposit and stay of recovery in favor of the appellant.

Issue 4: Prima facie case for the appellant regarding the levy of service tax
The Tribunal acknowledged a prima facie case for the appellant based on the services received and the considerations paid as per the contract terms. The Tribunal noted that the grounds raised in the appeal were sustainable, especially concerning the classification of services and the attempt to levy service tax on the entire amount paid to the Russian company. Consequently, the Tribunal granted waiver and stay in respect of the service tax demanded from the appellant.

This comprehensive analysis highlights the key issues of the judgment, including the classification of taxable services, the validity of the addendum, and the Tribunal's decision to grant waiver and stay in favor of the appellant based on a prima facie case.