2013 (12) TMI 1218 - AT - Service Tax

Waiver of pre deposit - Demand of service tax - Business exhibition - Held that - for the services of Business Exhibition covered by Section 65(105)(zzo), in accordance with Rule 3(ii) of Taxation of Services (Provided From Outside India and Received in India) Rules, 2006, to have been received in India, the services must be performed in India. But since this service has been performed abroad and not in India, we are of the prima facie view that the same cannot be considered as having been received in India - Following decision of Marino Industries Ltd. reported in 2011 (7) TMI 820 - CESTAT, NEW DELHI - Stay granted.

Summary

Issues:
1. Whether the appellant is liable to pay service tax for business exhibition services received from foreign service providers.
2. Whether the services performed abroad can be considered as received in India for the purpose of taxation.
3. Whether the appellant is required to make a pre-deposit of service tax demand, interest, and penalty pending the appeal.

Analysis:
1. The case involved the appellant, a manufacturer of copper pipe and capillaries, who organized business exhibitions abroad to promote export sales, for which they received business exhibition services from foreign service providers. The department confirmed a service tax demand of Rs. 54,217 for the period from April 2006 to October 2007 under Section 66A of the Finance Act, 1994, treating the appellant as the service recipient from offshore providers.

2. The appellant's counsel argued that the services received fell under the category of Business Exhibition chargeable to service tax as per Section 65(105)(zzo) of the Finance Act, 1994. It was contended that for these services to be considered as received in India from outside India, as per Rule 3(ii) of Taxation of Services Rules, 2006, the services must be performed in India. Since the services were performed abroad and not in India, it was argued that they cannot be treated as received in India, thus challenging the tax liability under Section 66A of the Finance Act, 1994.

3. The Senior Departmental Representative opposed the stay application, supporting the Commissioner (Appeals) findings in the impugned order. However, the Tribunal, comprising Ms. Archana Wadhwa and Shri Rakesh Kumar, JJ., analyzed the submissions from both sides and reviewed the records. They observed that for services of Business Exhibition to be considered as received in India, they must be performed in India as per Rule 3(ii) of the Taxation of Services Rules, 2006. Since the services in question were performed abroad and not in India, the Tribunal held that prima facie, the services cannot be deemed as received in India. The Tribunal cited the decision in the case of Marino Industries Ltd. to support this view. Consequently, the requirement of pre-deposit of service tax demand, interest, and penalty was waived for the appeal's hearing, and recovery was stayed pending the appeal's disposal. The stay application was allowed, providing relief to the appellant.