2015 (8) TMI 399 - AT - Service Tax

Denial of refund claim - Reverse Charge mechanism - commission paid to the foreign based agents - Held that - judgement of the Supreme Court in the case of Indian National Shipowners Association (2009 (12) TMI 850 - SUPREME COURT OF INDIA), holding that reverse charge mechanism became operation only with effect from 18.4.2006 when Section 66A was introduced in the Finance Act, 1994 the issue is no longer res integra and has been decided in favour of the respondent. - infirmity in the impugned order in appeal - Decided against Revenue.

Summary

Issues:
Claim for refund of service tax paid under reverse charge mechanism prior to the introduction of Section 66A of the Finance Act, 1994.

Analysis:
The appeal was filed by the Revenue against an order-in-appeal that set aside the order-in-original with consequential relief. The respondent had filed a refund claim of &8377; 1,70,608/-, arguing that they paid service tax under reverse charge mechanism on commission paid to foreign agents. The Commissioner (Appeals) relied on the Supreme Court judgment in the case of Indian National Shipowners Association, stating that service tax was not payable under reverse charge mechanism before 18.4.2006. The period involved in this case was prior to that date (6/2005 to 3/2006). The primary adjudicating authority had initially rejected the refund claim, but the Commissioner (Appeals) overturned this decision based on the Supreme Court judgment.

During the proceedings, nobody appeared on behalf of the appellant. The learned DR acknowledged that the issue had been settled by the Supreme Court judgment in the case of Indian National Shipowners Association, which established that the reverse charge mechanism only became operational with the introduction of Section 66A on 18.4.2006. As the period in question in this case was before that date, the issue was no longer open to debate and had been decided in favor of the respondent.

The Tribunal, composed of Mr. G. Raghuram, President, and Mr. R.K. Singh, Member (Technical), found no fault with the order-in-appeal. Consequently, the appeal filed by the Revenue was dismissed. The decision was based on the clear legal position established by the Supreme Court judgment, which determined that service tax was not payable under the reverse charge mechanism for the period prior to the introduction of Section 66A of the Finance Act, 1994.