2011 (5) TMI 836 - AT - Service Tax

Waiver of pre-deposit - authorities implementing the STP scheme are treating that the applicants are involved in export activities and the remittance received by them are towards exports Held that - payments have been received in foreign exchange only from foreign based companies who are owning the CRS system, no payment by the India based travel agents to the applicants. On the other hand, undisputedly, the applicants are giving various incentives to the travel agents, income-tax authorities including ITAT have held that the activities undertaken by the applicants relate to export, applicants have made out a strong prima facie case for waiver of dues as per the impugned orders, pre-deposit waived

Summary

Issues:
Waiver of pre-deposit of service tax along with interest and penalties under Sections 76 and 77 of the Finance Act, 1994 for M/s. Amadeus India Pvt. Ltd. and M/s. Galileo India Pvt. Ltd.

Analysis:
1. The appeals by M/s. Amadeus India Pvt. Ltd. and M/s. Galileo India Pvt. Ltd. sought waiver of pre-deposit of substantial service tax amounts along with interest and penalties imposed under Sections 76 and 77 of the Finance Act, 1994. Both cases involved common issues and were disposed of through a common order.

2. The hearing included representations from the consultants and advocates for the appellants, as well as the learned DRs representing the department, ensuring all parties had the opportunity to present their arguments and perspectives.

3.1. In the case of M/s. Galileo India Pvt. Ltd., the company operated under the Software Technology Park scheme and had an agreement with a US-based company for a Computer Reservation System (CRS). The Commissioner found that the company provided business auxiliary services to Indian travel agents, leading to the demand for service tax, interest, and penalties. The appellants contested these findings on various grounds related to export activities and treatment of payments received.

3.2. Similarly, M/s. Amadeus India Pvt. Ltd., operating under the Software Technology Park of India, faced similar allegations and demands related to service tax, interest, and penalties for services provided to an overseas company maintaining a CRS.

3.3. The advocates for the appellants argued that the activities should be considered as export of software or processed data, as supported by the treatment of receipts by income tax authorities under Section 80HHE of the Income-tax Act. They emphasized that payments were received only from foreign companies, not Indian travel agents, and were in foreign exchange, indicating export-oriented activities.

4. The learned DR countered these arguments by asserting that the activities of the appellants, along with travel agents, constituted marketing and promotion of foreign companies' services in India. The DR highlighted the distinction between income tax treatment and service tax law interpretation, advocating for a pre-deposit considering the lack of financial hardship shown by the appellants.

5. The Tribunal carefully examined the submissions and records, noting that both appellants operated export-oriented units under the STP scheme. The payments received were in foreign exchange from foreign companies owning the CRS systems, with the ultimate beneficiaries deemed to be Indian travel agents by the Commissioner. However, the Tribunal found no evidence of payments from travel agents to the appellants, who instead provided incentives to the agents. Considering the activities' export nature and income tax authorities' recognition, the Tribunal held a strong prima facie case for waiving the dues as per the impugned orders.

6. Consequently, the Tribunal waived the dues as per the impugned orders and stayed recoveries until the appeal's disposal, recognizing the substantial disputed amounts involved.

7. Given the significant disputed amounts, the Tribunal scheduled the appeals for final hearing on an expedited basis, reflecting the importance and complexity of the issues at hand.