2014 (6) TMI 594 - AT - Service Tax

Waiver of pre deposit - reverse charge - import of services - web hosting services - maintenance and repair service Held that - in respect of maintenance and repair service in respect of software to have been received from foreign service providers during period from 09/07/04 to 17/04/06 - since these services had been received during period prior to 18/04/06 when there was no provision in the Finance Act, 1994 for charging service tax in respect of services received by a person in India from an offshore service provider - demand is not sustainable. As regards supply of software content for use in telecommunication service - held that - for the period prior to 01/06/07 no service tax could be charged by treating this service as business support service. - demand is not sustainable. AS regards activity of wireless instant messenger application on MTC s network - Held that - there is nothing in the joint venture from which it can be inferred that TASK, Kuwait were providing the service of marketing or promotion of the services of the appellant and, as such, this joint venture agreement cannot be said to be an agreement between the service provider and the service recipient. - demand is not sustainable. As regards web hosing services - classification - information technology service covered by Section 65 (105) (zzzze) or business support service taxable w.e.f. 01/05/06 under Section 65 (105) (zzzq) - Held that - On perusal of Section 65 (105) (zzzze), we are prima facie view that the service of Web hosting being received by the appellant from foreign service providers is not covered by clause 65 (105) (zzzze), as this clause covers various services in relation to information technology software including development of information technology software, study, analysis, design and programming of information technology software, acquiring the right to use the information technology software supplied electronically etc. - On the other hand the Web hosting services received by the appellant involved providing of space by a service provider in his server to another person to enable that person to upload information about his business or his company which can be accessed by his customers, friends and other individuals through internet. The Web hosting service is a service which is used by person for marketing of his products and, therefore, in our prima facie view, the same has to be treated as support service of business or commerce. Therefore, in respect of the service tax demand on this service, the appellant do not appear to have prima facie case in their favour. - stay granted partly.

Summary

Issues Involved:
1. Classification of 'development and content supply services' as 'business support service'.
2. Taxability of revenue share from joint venture with TASK, Kuwait as 'Business Auxiliary Service'.
3. Taxability of payments for virtual space on servers as 'business support service'.
4. Taxability of maintenance or repair services and management consultancy services received from foreign providers before 18/04/06.
5. Penalties and interest imposed under various sections of the Finance Act, 1994.

Issue-wise Detailed Analysis:

1. Classification of 'development and content supply services' as 'business support service':
The appellant provided 'development and content supply services' to telecom service providers, enabling mobile subscribers to receive advertisements, ring tones, and information via SMS. The Department classified this service under 'business support service' taxable under Section 65 (105) (zzzq) read with Section 65 (104c) of the Finance Act, 1994, for the period from 01/05/06 to 31/05/07, leading to a service tax demand of Rs. 53,02,577/-. The appellant argued that this service became taxable only from 01/06/07 under a newly inserted clause (zzzzb) and should not be taxed as 'business support service' prior to that date. The Tribunal found merit in the appellant's argument, holding that the service was not taxable as 'business support service' before 01/06/07.

2. Taxability of revenue share from joint venture with TASK, Kuwait as 'Business Auxiliary Service':
The appellant's joint venture with TASK, Kuwait, involved implementing an instant messenger application on MTC's network, with revenue shared between the appellant and TASK. The Department alleged that the appellant received 'Business Auxiliary Service' from TASK, treating the revenue share as commission, resulting in a service tax demand of Rs. 50,53,645/- for the period from 01/10/03 to 31/03/07. The appellant contended that the payment was a revenue share, not commission for services. The Tribunal agreed with the appellant, finding no evidence that TASK provided marketing or promotion services, and thus, the demand was not sustainable.

3. Taxability of payments for virtual space on servers as 'business support service':
The appellant paid foreign parties for virtual space on servers to upload documents and business information, accessible by their customers via the internet. The Department classified this as 'business support service' taxable under Section 65 (105) (zzzq) read with Section 65 (104c), leading to a service tax demand of Rs. 35,84,039/- for the period from 01/05/06 to 31/03/08. The appellant argued that this service was 'Information Technology Service' under Section 65 (105) (zzzze), taxable only from 16/05/08. The Tribunal, however, held that web hosting services were used for marketing purposes and thus fell under 'business support service', making the demand sustainable.

4. Taxability of maintenance or repair services and management consultancy services received from foreign providers before 18/04/06:
The appellant received maintenance or repair services and management consultancy services from foreign providers before 18/04/06. The Department sought to tax these under Rule 2 (1) (d) and Rule 2 (1) (b) (IV) of the Service Tax Rules, 1994, resulting in demands of Rs. 36,949/- and Rs. 67,922/-, respectively. The appellant argued that Section 66A, which allowed taxing services received from offshore providers, was only introduced on 18/04/06. The Tribunal agreed, citing the Bombay High Court judgment in Indian National Shipowners Association vs. Union of India, and held that the demands were not sustainable.

5. Penalties and interest imposed under various sections of the Finance Act, 1994:
The Commissioner confirmed a total service tax demand of Rs. 1,40,23,819/- along with interest under Section 75 and imposed penalties under Sections 77 and 78 of the Finance Act, 1994. The Tribunal, considering the merits of the appellant's case on various issues, directed a pre-deposit of Rs. 30,00,000/- and waived the requirement for the balance amount, interest, and penalties until the final disposal of the appeal.

Conclusion:
The Tribunal's judgment provided significant relief to the appellant by setting aside most of the service tax demands, except for the demand related to web hosting services. The Tribunal also allowed the appellant's miscellaneous application for early hearing and directed a partial pre-deposit, emphasizing the appellant's strong prima facie case on several issues.