2012 (9) TMI 22 - AT - Service Tax

Demand of service tax - service providers are in abroad and this service has been performed in Vietnam in connection with the appellant s participation in the trade fair and exhibitions in that country Held that - Service classifiable under Section 65(105)(zzo) provided from outside India shall be treated as received in India only if such services have been performed in India. Since, this service has not been performed in India - same cannot be treated as received in India by the appellants and, hence, service tax in respect of the same cannot be charged from the appellant by invoking the provisions of Section 66A

Summary

Issues:
1. Liability of the appellant to pay service tax on Business Exhibition Service.
2. Validity of the show cause notice for allegedly short paid service tax.
3. Adjudication of the show cause notice by the Jurisdictional Assistant Commissioner.
4. Order-in-appeal by the Commissioner setting aside part of the demand and confirming the balance.
5. Appeal against the order-in-appeal and stay application.

Analysis:
1. The appellant had Service Tax registration for payment of service tax on Business Exhibition Service. The department alleged that the appellant, as a service recipient of business exhibition service, was liable to pay service tax on space booking for stalls for participation in exhibitions in Vietnam. A show cause notice was issued for demand of allegedly short paid service tax, interest, and penalties under Sections 77 and 78 of the Finance Act, 1994.

2. The Jurisdictional Assistant Commissioner confirmed the service tax demand, interest, and penalties. However, on appeal, the Commissioner (Appeals) set aside part of the demand for the period before a specific date and confirmed the balance demand along with interest. The penalties under Sections 77 and 78 were also modified by the Commissioner (Appeals).

3. The appellant contended that the Business Exhibition Service provided by foreign service providers and received abroad should not be taxable in India as it was not performed in India. The appellant argued that the service was not received in India as per Rule 3(ii) of the Taxation of Service Rules, 2006. The appellant requested a waiver of pre-deposit for hearing the appeal and a stay on recovery pending appeal.

4. The Tribunal observed that the service providers were abroad, and the service was performed in Vietnam for the appellant's participation in trade fairs. Since the service was not performed in India, it could not be treated as received in India. Therefore, the Tribunal held that the service tax demand, interest, and penalties should be waived for the appeal hearing, and recovery was stayed until the appeal's disposal. The stay application was allowed.

This judgment clarifies the taxability of services provided by foreign service providers and performed abroad for Indian recipients. It emphasizes the importance of the place of performance in determining the tax liability of such services, as per the relevant provisions of the Finance Act, 1994 and associated rules.