2011 (4) TMI 703 - AT - Service Tax

100% EOU - Service Tax Liability - banking and financial services received from a foreign country - Reverse charge tax shift mechanism operating under Rule 2(1)(d)(iv) of the Service Tax Rules, 1994 read with Section 66A of Finance Act, 1994 is effective only from 18.4.06 - Held that - appellants have received the services of the foreign based bank and made the payments of the charges to the bank in the year 2005 i.e. prior to the amendment of the Finance Act, 1994 and therefore find that the demand in the present case is not tenable and liable to be set aside - Decided in favour of assessee.

Summary

Issues:
Liability of 100% EOU for Service Tax on banking and financial services received from a foreign country.

Analysis:
The case involved a dispute regarding the liability of a 100% Export Oriented Unit (EOU) for paying Service Tax on banking and financial services received from a foreign country. The Revenue contended that the services received by the appellants from a foreign bank for raising Foreign Currency Convertible Bonds (FCCB) were taxable under the category of 'Banking and Financial Services.' The appellants had availed loans through External Commercial Borrowings (ECB) and FCCB, with the lead manager based abroad. The Revenue issued a Show Cause Notice, demanding Service Tax of Rs. 29,03,124, along with interest and penalties, which was confirmed by the original adjudicating authority.

The respondents challenged this order before the Commissioner (Appeals), who allowed the appeal based on the judgment of the Hon'ble Mumbai High Court. The High Court had held that the reverse charge tax shift mechanism, effective from 18.4.06 under Section 66A of the Finance Act, 1994, applied only to services received after this date. Since the appellants had received the services and made payments in 2005, prior to the enactment of Section 66A, the demand for Service Tax and related charges were deemed not applicable. The Commissioner (Appeals) set aside the demand, stating that without a valid demand for Service Tax, interest or penalties could not be imposed.

The Appellate Tribunal, relying on the decision of the Hon'ble Mumbai High Court, upheld the order of the Commissioner (Appeals). The Tribunal found no infirmity in the decision and rejected the Revenue's appeal, disposing of the Stay Petition accordingly.

In conclusion, the judgment clarified the applicability of the reverse charge tax shift mechanism under Section 66A of the Finance Act, 1994, and highlighted that services received prior to its enactment were not subject to Service Tax liability. The decision was based on the interpretation of relevant legal provisions and previous judicial rulings, providing relief to the appellants in this case.