2013 (11) TMI 800 - AT - Service Tax

Stay application - Service tax demand - Payment of royalty, agency commission and other technical charges - Held that - Prima facie demand of tax prior to 18.4.2006 is covered by the decision of Hon ble Bombay High Court in the case of Indian National Ship Owners Association (2008 (12) TMI 41 - HIGH COURT OF BOMBAY). The demand in respect of period after 18.4.2006, it is evident that applicant already paid Rs.45,28,541/- and additional deposit of Rs.1.09 crores would partly include the present period. The applicant is also contesting the demand on time bar. In view of that, we find that applicant has made out prima facie case for waiver of pre-deposit of balance amount of tax, penalty along with interest. The issue raised is that for the services rendered prior to 18.4.06 and amount received after 18.4.06, whether tax is leviable or not would be examined at the time of appeal hearing. In view of that, pre-deposit of balance amount of tax along with interest and penalty is waived and its recovery is stayed during pendency of appeal - Stay granted.

Summary

Issues:
- Taxability of services received from outside India
- Time bar for demand of service tax
- Prima facie case for waiver of pre-deposit
- Stay application during pendency of appeal

Analysis:

1. Taxability of services received from outside India:
The applicants, engaged in manufacturing various products, received taxable services from outside India and made payments in foreign currency towards royalty, agency commission, and technical charges. A demand of service tax amounting to Rs.1,35,83,965/- along with interest and penalty for the period from 2004-05 to 2007-08 was raised.

2. Time bar for demand of service tax:
The advocate representing the applicants argued that the demand of Rs.35,45,997/- for the period before 19.4.06 is not sustainable based on a decision of the Bombay High Court. He further contended that the demand of Rs.96,05,979/- for the period after 19.4.06 is barred by limitation. The advocate highlighted that payments were made and recorded in the impugned order, with a total of Rs.1,09,22,318/- paid for the period up to 31.3.2010, partly covering subsequent periods.

3. Prima facie case for waiver of pre-deposit:
The Commissioner provided detailed reasoning on the time bar issue, indicating that the payment made by the applicants of Rs.1.09 crores did not provide specific unit-wise details and might not cover the present period. However, after considering submissions from both sides, the Tribunal found a prima facie case for waiver of pre-deposit of the balance amount of tax, penalty, and interest. The Tribunal acknowledged that the demand for the period after 18.4.2006 had been partly covered by the payments made by the applicants.

4. Stay application during pendency of appeal:
The Tribunal concluded that the demand of tax prior to 18.4.2006 was addressed by the Bombay High Court decision and that the issue of tax liability for services rendered before and after 18.4.06 would be examined during the appeal hearing. Consequently, the Tribunal waived the pre-deposit of the balance amount of tax, penalty, and interest, and stayed the recovery during the pendency of the appeal. The stay application was allowed, providing relief to the applicants until the final determination of the tax liability issue.