2013 (8) TMI 419 - AT - Service Tax

Classification of Service - Reverse Charge - Business Auxiliary Service u/s 65 (105) (zzb) or Business Support Service u/s 65 (105) (zzzq) - Duty demand Interest and Penalty Assesse was a manufacturer and exporter and was taking the services of agents abroad and paying commission to them Revenue was of the view that services were taxable as Business Auxiliary Service u/s 65 (19)(i), the service provider was located abroad the Revenue was of the view that the service was taxable in the hands of the assesse - Held that - The service was taxable as Business Auxiliary Service and chargeable in the hands of the assesse - the relief that would have been available for getting refund of such tax paid for export of goods has to be kept in view even if the service was taxable as Business Support Service , there will not be any change in tax liability under reverse charge mechanism or any other count - revenue-neutrality cannot be taken as a ground for avoiding payment of tax at any stage of a VAT system relying upon Microlabs Ltd. Vs. CST 2008 2008 (1) TMI 182 - CESTAT, BANGALORE . Waiver of Pre- deposit assesse failed to make out the prima facie case in its favor - 10Lakhs were ordered to be submitted upon such submission rest of the duty to be waived till the disposal Decided partly in favor of assesse.

Issues:
1. Time-barred demand for service tax.
2. Taxability of services received abroad.
3. Classification of service under Business Support Services.
4. Availability of Cenvat credit and refund.
5. Applicability of revenue-neutrality in tax matters.

Analysis:

1. Time-barred demand for service tax:
The applicant contended that the demand for service tax was time-barred since they had disclosed the payments to their agents abroad during an audit in January 2009, whereas the Show Cause Notice was issued on 08-07-2010. The Revenue argued that the time limit for issuing a demand notice is five years from the date on which returns ought to have been filed, as per the Finance Act, 1994. The Tribunal found the argument regarding time bar not sustainable, stating that any argument regarding time bar of one year can apply only in relation to services provided after the date of disclosure and not before.

2. Taxability of services received abroad:
The applicant argued that the services received abroad should not be subjected to tax under the Finance Act, 1994. They relied on a Tribunal order in a previous case and contended that the services fall under Business Support Services rather than Business Auxiliary Service. However, the Revenue contended that the services were taxable under Business Auxiliary Service and were chargeable in the hands of the applicant. The Tribunal prima facie agreed with the Revenue's argument, citing relevant provisions and rules.

3. Classification of service under Business Support Services:
The applicant further argued that if the service is taxable, it should fall under Business Support Services based on a Tribunal decision in a different case. They claimed that the demand confirmed under Business Auxiliary Service was not maintainable. The Tribunal did not delve deeply into this argument but ordered a pre-deposit based on other considerations.

4. Availability of Cenvat credit and refund:
The applicant asserted that if they were to pay service tax on the services received, it would be an input service for them, making them eligible for Cenvat credit and refund under specific rules. They argued that the matter was revenue-neutral and requested admission of the appeal without any pre-deposit. However, the Tribunal did not address this argument explicitly in their order.

5. Applicability of revenue-neutrality in tax matters:
The applicant contended that since the payment of service tax would be revenue-neutral for them, the appeal should be admitted without any pre-deposit. The Revenue argued against this, stating that revenue-neutrality cannot be a ground for avoiding payment of tax at any stage of a VAT system. The Tribunal did not explicitly address the revenue-neutrality argument but considered it along with other factors in their decision to order a pre-deposit.

In conclusion, the Tribunal ordered the applicant to make a pre-deposit of Rs. 10,00,000 for the admission of the appeal, while waiving the pre-deposit of the balance dues and staying their collection during the appeal's pendency. The decision was based on a prima facie agreement with the Revenue's arguments regarding the taxability of the services under Business Auxiliary Service and the time-barred nature of the demand.

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