2014 (7) TMI 410 - AT - Service Tax

Business Support service - amount received from M/s GECAS, Ireland in convertible foreign exchange - whether these services are to be treated as export of service in terms of Export of Service Rules, 2005 and, hence, not liable to service tax in India or whether the same are to be treated as services provided by the appellant to the service recipient in India and hence taxable in India Held that - From the nature of services, it is absolutely clear that the services provided by the appellant are meant for use by their holding company M/s GECAS, Ireland in its business and it is M/s GECAS, Ireland who have paid for these services - following the judgment of the Tribunal in the case of GAP International Sourcing (India) Pvt. Ltd. vs. CST, Delhi (2009 (1) TMI 221 - CESTAT, NEW DELHI) and also Paul Merchants Ltd. vs. CCE, Chandigarh (2012 (12) TMI 424 - CESTAT, DELHI (LB)) it is GECAS, Ireland who have to be treated as recipient of these services and hence the services provided by the appellant have to be treated as export of services and, accordingly, the same would not be liable to service tax in India - it is GECAS, Ireland who have to be treated as recipient of these services and hence the services provided by the appellant have to be treated as export of services and, accordingly, the same would not be liable to service tax in India - service tax demand not sustainable. Valuation - associated enterprises - payment of service tax on the basis of debit / credit entries in the accounts - Demand of Interest - delayed payment of ST - manpower supply service - Debit entries made in books of accounts Held that - debit entries, in question, had been made during period prior to 10/05/08, the same cannot be treated as payments made by the appellant to M/s GECAS, Ireland and the appellant would be treated as having made payments to M/s GECAS, Ireland only in August 2009 when the payments had actually been made. Accordingly, the demand for the interest for alleged delay in discharging service tax liability by the due date is not sustainable - demand of interest for alleged delay in discharging service tax liability by the due date is not sustainable Decided in favour of assessee.

Issues Involved:
1. Taxability of business support services provided by the appellant to their holding company, GECAS, Ireland.
2. Demand of interest for delayed payment of service tax on manpower supply services received from GECAS, Ireland.
3. Imposition of penalties under Sections 76, 77, and 78 of the Finance Act, 1994.

Issue-wise Detailed Analysis:

1. Taxability of Business Support Services:
The appellant, an Indian subsidiary of GECAS, Ireland, provided various business support services to its holding company, including customer identification, transaction structuring advice, delivery schedule tracking, customer relationship management, customer care services, and operational assistance. The appellant received remuneration in convertible foreign currency for these services. The department contended that these services are taxable under Section 65 (105) (zzzq) read with Section 65 (104c) of the Finance Act, 1994, and do not qualify as export services under the Export of Service Rules, 2005. The appellant argued that the services should be treated as export of services since the recipient, GECAS, Ireland, is located outside India and the payment was received in foreign exchange. The Tribunal held that the services provided by the appellant are meant for use by GECAS, Ireland in its business, and thus, GECAS, Ireland is the recipient of these services. Following the judgments in Paul Merchants Ltd. vs. CCE, Chandigarh and GAP International Sourcing (India) Pvt. Ltd. vs. CST, Delhi, the Tribunal concluded that the services qualify as export of services and are not liable to service tax in India. Consequently, the demand for service tax of Rs. 2,02,76,796/- along with interest and penalties was set aside.

2. Demand of Interest for Delayed Payment of Service Tax:
The appellant received manpower supply services from GECAS, Ireland under a secondment agreement and accrued the amounts payable in their books of accounts during 2005-2006 to 31/03/08. The actual payment was made in August 2009, and service tax was paid on 2nd September 2009 on a reverse charge basis. The department demanded interest of Rs. 12,16,050/- for the delayed payment, citing the amendment to Explanation (c) of Section 67 of the Finance Act, 1994, and Rule 6 (1) of the Service Tax Rules, 1994, effective from 10/05/08. The Tribunal referred to the judgment in Sify Technologies Ltd. vs. CCE & ST, LTU, Chennai, which held that the explanation added to Rule 6 (1) cannot be given retrospective effect. The Tribunal concluded that the amendment could not be applied to the period before 10/05/08, and thus, the interest demand for the alleged delay was not sustainable.

3. Imposition of Penalties:
Given that the main service tax demand and the interest demand were found unsustainable, the penalties imposed under Sections 76, 77, and 78 of the Finance Act, 1994, were also set aside. The Tribunal noted that the appellant had not suppressed any relevant facts from the department, and the longer limitation period under proviso to Section 73 (1) was incorrectly invoked.

Conclusion:
The Tribunal set aside the impugned order, concluding that the services provided by the appellant to GECAS, Ireland qualify as export of services and are not taxable in India. The demand for interest on delayed payment of service tax was also found unsustainable due to the non-retrospective application of the relevant amendments. Consequently, all penalties imposed on the appellant were annulled, and the appeal was allowed.

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