2013 (8) TMI 452 - AT - Service Tax

Authorised Dealer of Foreign Exchange u/s 65 (105) (zm) r.w. other financial services 65 (12) (a) (ix) - Duty demand Interest and Penalty Waiver of Pre-deposit - Revenue was of the view that the service was taxable Held that - Section 65 (105) (12)(a) as also section 65 (12) (a)(ix) specifies services using the expression services namely - Such language gives very little scope for an expansive construction of the items enumerated - One expression used therein was bank guarantee - Commercially bank guarantee and Corporate guarantee were two different financial instruments - This interpretation does not render the expression anybody corporate used in section 65 (12) redundant because it still had meaning in respect of other sub-clauses at (i), (iii), (iv), (v) etc - corporate guarantee was given in relation a banking and financial service specified at section 65 (12) - the Show cause Notice or adjudication proceedings do not bring out any such case - there was not much merit in the contention of Revenue - the requirement of pre-deposit of dues to be waived and stay its collection till the disposal.

Summary

Issues:
1. Taxability of commission received for providing corporate guarantees to subsidiary companies.
2. Tax liability on payment made for securing external commercial loans and paying commission to a foreign entity.
3. Appeal against the order of the adjudicating authority and stay petition for waiver of pre-deposit of dues.

Issue 1: Taxability of Commission for Corporate Guarantees
The appellant provided corporate guarantees to subsidiary companies without paying service tax on the commission received. The Revenue contended that the service is taxable under section 65 (105) (zm) read with section 65 (12) (a) (ix) of the Finance Act, 1994. The appellant argued that the activity does not fall under the definition of 'banking and financial services' as per section 65 (12), specifically clause (ix). They emphasized the distinction between 'bank guarantees' and 'corporate guarantees,' highlighting that the services specified in clause (ix) are limited and cannot be expanded to cover other activities. The Tribunal agreed with the appellant, stating that the scope of clause (ix) is narrow, and the impugned corporate guarantees did not relate to banking and financial services as specified in the Act.

Issue 2: Tax Liability on Payment for External Commercial Loans
In another instance, the appellant made payments to a foreign entity for securing external commercial loans and paid commission without paying tax. The Revenue argued that this service falls under section 66A of the Finance Act, 1994, and should be taxed in India. The appellant contended that the service provided by the foreign entity cannot be categorized as a 'banking and financial service' and that the activity was performed outside India, hence not subject to service tax levy in India. The Tribunal noted that the liability for services received from outside India is determined by the recipient's place of residence, not the place of service performance. Ultimately, the Tribunal found in favor of the appellant, stating that the service did not fall under the purview of banking and financial services as defined in the Act.

Issue 3: Appeal Against Adjudicating Authority's Order
The appellants filed an appeal against the order of the adjudicating authority, challenging the tax demands imposed on them. They also filed a stay petition seeking a waiver of pre-deposit of dues arising from the order to admit the appeal. The appellant's counsel argued that there was no merit in the Revenue's contentions, and the appeal should be admitted without pre-deposit. The Revenue opposed the prayer, emphasizing that corporate guarantees are akin to bank guarantees and should be taxed accordingly. The Tribunal analyzed the relevant sections of the Finance Act and concluded that the impugned activities did not fall within the taxable services specified, thereby waiving the pre-deposit requirement and staying the collection of dues during the appeal's pendency.

In conclusion, the Tribunal ruled in favor of the appellant on both issues, holding that the activities in question did not constitute taxable banking and financial services under the Finance Act, 1994. The Tribunal granted the waiver of pre-deposit and stayed the collection of dues pending the appeal's resolution.