2015 (8) TMI 257 - AT - Service Tax

Waiver of pre deposit - reverse charge mechanism - Online Information and Database Access or Retrieval (OIDAR) - Extended period of limitation - Held that - demand of ₹ 8,46,91,054/- under OIDAR service was beyond the period of one year. In this regard it is to note that the adjudicating authority has extended the benefit of Section 80 of the Finance Act, 1994 to the appellant for waiver of penalty under Sections 76, 77 and 78 of the Act. Revenue is not in appeal there-against. Viewed in the light of the fact that benefit of Section 80 of the Act has been extended by the adjudicating authority, the appellant s contention that it is a strong ground to grant waiver of pre-deposit of demand pertaining to beyond normal period of one year is clearly persuasive. We also note that the appellant prima facie has reasonably good case that educational institutions, particularly, the Govt. institutions which are major recipients of OIDAR service did not/could not have used the said service for business or commerce as these are not institutions for business or commerce and therefore impugned service tax under OIDAR service under reverse charge mechanism was not payable at all. - Partial stay granted.

Summary

Issues:
1. Applicability of service tax under reverse charge mechanism for import of OIDAR service.
2. Period of demand for OIDAR service.
3. Waiver of penalty under Sections 76, 77, and 78 of the Act.
4. Pre-deposit requirement for appeal.

Analysis:
1. The appellant challenged the service tax demand under OIDAR service, arguing that service tax under reverse charge mechanism is only applicable when the service is received from abroad by a recipient located in India for use in relation to business or commerce. The appellant contended that educational institutions like IITs and IIMs, major recipients of OIDAR service, did not use the service for business or commerce. The Departmental Representative argued that these institutions engage in commercial activities by taking contracts from trade and industry. The Tribunal found that the demand for OIDAR service prior to 18.04.2006 was not applicable under reverse charge mechanism. Additionally, the demand beyond one year was also not sustainable. The appellant's contention that educational institutions did not use the service for business or commerce was considered persuasive.

2. The Tribunal noted that the demand under OIDAR service for a period beyond one year was unsustainable. The adjudicating authority had already extended the benefit of Section 80 of the Finance Act, 1994 to the appellant for waiver of penalties under various sections of the Act. The Revenue did not appeal against this decision. Considering the benefit of Section 80 extended to the appellant, the Tribunal found the appellant's argument for waiver of pre-deposit for the demand beyond the normal period of one year to be strong.

3. The Tribunal ordered a pre-deposit of Rs. 25 lakhs within four weeks, as required under Section 35F of the Central Excise Act, 1944, read with Section 83 of the Finance Act, 1994. Compliance was to be reported by a specified date, and recovery of the remaining adjudicated liabilities was stayed during the appeal's pendency. Failure to comply with the pre-deposit would result in the dismissal of the appeal.

In conclusion, the Tribunal ruled in favor of the appellant regarding the applicability of service tax under reverse charge mechanism for OIDAR service, the period of demand, and the waiver of penalties. The pre-deposit requirement was set at Rs. 25 lakhs, with recovery of remaining liabilities stayed pending appeal.