2013 (10) TMI 300 - AT - Service Tax

CENVAT Credit Intellectual Property Service u/s 65(55b) - Revenue was of the view that assesses were not entitled for taking credit in excess of 20% under the provisions of Rule 6(3) of the CENVAT Credit Rules, 2004 Held that - The applicant had transferred copyright and therefore, the same was not included in the definition of Intellectual Property Service - it cannot be said that the same was taxable service and it cannot be exempted service. Export of Service Held that - In respect of the demand of the service recipient was outside India though the part of the advertisements was also broadcasting in India - The Board vide Circular No. 111/05/2009-ST clarified that for the services fall under the Category III Rule 3(1)(iii) , the relevant factor was the location of the service receiver and not the place of performance - As the service recipient was outside India, therefore, there was merit in the contention of the applicant. Business Auxiliary Services - As regards demand in respect of Business Auxiliary Service the applicant was receiving the service from the foreign cable operator in respect of their business - We find that the applicant had not made out prima facie case for total waiver of pre-deposit of the service tax for the normal period of demand - In respect of the other demands, the applicant had not made out a case for total waiver of pre-deposit of the service tax the applicant was directed to make a pre-deposit partial stay granted.

Summary

Issues:
1. Waiver of pre-deposit of service tax, interest, and penalty.
2. Demand confirmation for availing credit in excess, broadcasting services, business auxiliary service, renting of immovable property service, sale of space or time for advertisement.

Analysis:
1. The applicant sought waiver of pre-deposit of service tax, interest, and penalty amounting to Rs. 1,72,82,962/-. The demand of Rs. 95,11,529/- was confirmed due to availing credit in excess of 20% for providing both taxable and exempted services. Another demand of Rs. 56,40,348/- was upheld as broadcasting services were not considered as 'export of service.' Additionally, a demand of Rs. 15,81,388/- for Business Auxiliary Service was made. Remaining demands of approximately Rs. 5 lakhs were also contested. The applicant mainly disputed the demands of Rs. 95,11,529/-, Rs. 56,40,348/-, and Rs. 15,81,388/-, arguing that the transfer of copyright does not fall under 'Intellectual Property Service,' hence not exempted from taxable service.

2. Regarding the demand of Rs. 56,40,348/-, the applicant contended that services provided to a recipient outside India should not be considered as 'export of service.' The Revenue argued that since broadcasting services were performed in India, they should be taxable. For the demand of Rs. 15,81,388/- related to Business Auxiliary Service, the applicant claimed that receiving signals from a foreign cable operator should not qualify as such service. The Revenue asserted that payments received from foreign cable operators made the applicant liable for service tax. The Tribunal found merit in the applicant's arguments for the demands of Rs. 95,11,529/- and Rs. 56,40,348/-, as the transfer of copyright and service recipient location justified their stance. However, for the demand of Rs. 15,81,388/-, the applicant failed to establish a prima facie case for total waiver of pre-deposit, leading to a directive to deposit Rs. 20,00,000/- within a specified period.

3. The Tribunal's decision highlighted the importance of the definitions of services provided under the Finance Act, emphasizing the scope and applicability of 'Intellectual Property Service' and 'export of service.' The judgment clarified the criteria for determining the taxability of services based on the location of the service recipient and the nature of the service provided. Ultimately, the Tribunal granted partial relief to the applicant by waiving pre-deposit for certain demands while requiring compliance with the specified deposit amount for others, ensuring a fair and balanced resolution of the issues raised.