2019 (8) TMI 1688 - AT - Service Tax

Non-payment of service tax - Business Support Services or not - Broadcasting Services - fixed satellite - HELD THAT - It is seen that Business Support Service (BSS) covers in its ambit various activities including infrastructural support services. A perusal of the definition would show that it does not cover the activities undertaken by the Appellant since it only uplinks and downlinks satellite beams at agreed and desired bandwidth provided by Intelsat and hence such an activity cannot be Infrastructural Support Services. It is also evident from the CBEC Circular dated 28.02.2006 that the Infrastructural Support Service covered under BSS is with reference to only those services which has been outsourced. The Department has presumed that the Appellant has outsourced their activity of uplinking and downlinking signal beams at agreed and desired bandwidth. The said view is not correct since the Appellant has not outsourced their activity of uplinking and downlinking contents to be received and broadcasted but has purchased the desired bandwidth as they do not possess a satellite of their own to beam such signals - It is, therefore, clear that the fixed satellite is for broadcasting or beaming of contents and is beyond the scope of Infrastructural Support Service - the demand made in the impugned order is, therefore, not sustainable. Management, maintenance or repair service or not - Maintenance of software as per agreement with M/s Aveco and M/s Octopus in respect of Maintenance of Software and Upkeep of Hardware services obtained by the Appellant from the overseas entities - scope of SCN - HELD THAT - The show cause notice proposed demand of service tax under the category of Management, Maintenance or Repair Service, and therefore, the confirmation of service tax under the category of ITSS is beyond the scope of show cause notice. The impugned order, thus, has travelled beyond the show cause notice, and therefore, is not sustainable. The Commissioner has rightly dropped the demand pertaining to Maintenance, Management and Repair service pertaining to period prior to 16.05.2008, which is any case would not have come within the sweep of Management, Maintenance or Repair Service. Therefore, the appeal filed by the Department is not sustainable. Appeal allowed - decided in favor of assessee.

Issues Involved:
1. Demand of service tax under 'Business Support Service' (BSS).
2. Demand of service tax under 'Information Technology Software Services' (ITSS).
3. Demand of service tax on import of services from M/s Echostar Satellite and Broadcasting Services.
4. Classification of services received from M/s Aveco and M/s Octopus.
5. Invocation of the extended period of limitation.
6. Revenue neutrality and availability of cenvat credit.
7. Penalty imposition under Section 80 of the Finance Act.

Issue-wise Detailed Analysis:

1. Demand of Service Tax under 'Business Support Service' (BSS):
The impugned order confirmed the demand of service tax on the Appellant under 'reverse charge' for payments made to Intelsat under the category of BSS. The Appellant argued that the services provided by Intelsat, which involved hiring transponder capacity for uplinking and downlinking signals, do not fall under the ambit of BSS as defined under Section 65(104c) of the Finance Act. The Appellant relied on the CBEC Circular dated 28.02.2006 and various case laws, including Commissioner vs. R D Kute & Company, to argue that their activities do not constitute outsourced services covered under BSS. The Tribunal agreed with the Appellant, stating that the activities undertaken by the Appellant do not qualify as 'infrastructural support services' and are instead transactions of 'sale' as per the decision in Antrix Corporation Limited vs. Assistant Commissioner.

2. Demand of Service Tax under 'Information Technology Software Services' (ITSS):
The demand under ITSS was contested by the Appellant, who argued that the services received from M/s Aveco and M/s Octopus pertained to the maintenance of software and were taxable only from 16.05.2008. The Tribunal found that the show cause notice proposed demand under 'Management, Maintenance or Repair Service' (MMR), and the confirmation of demand under ITSS was beyond the scope of the show cause notice. The Tribunal relied on the decision in SAP India Private Limited vs. Commissioner, supporting the Appellant's contention.

3. Demand of Service Tax on Import of Services from M/s Echostar Satellite and Broadcasting Services:
The Adjudicating Authority dropped the demand related to the import of services from M/s Echostar, which was contested by the Revenue. The Tribunal upheld the Adjudicating Authority's decision, stating that the services provided by Echostar did not fall under the taxable category of Broadcasting Services as defined under Section 65(105)(zk) of the Finance Act.

4. Classification of Services Received from M/s Aveco and M/s Octopus:
The Tribunal examined the classification of services received from M/s Aveco and M/s Octopus, which involved maintenance of software and hardware. The Tribunal found that the services were correctly classified under ITSS and not under MMR, as proposed in the show cause notice. The demand under ITSS was deemed unsustainable as it was beyond the scope of the show cause notice.

5. Invocation of the Extended Period of Limitation:
The Appellant argued that the extended period of limitation could not be invoked as there was no suppression of facts with intent to evade payment of service tax. The Tribunal agreed, noting that the Appellant was under a bona fide belief that it was not liable to pay service tax, and the show cause notice did not indicate any positive act of suppression.

6. Revenue Neutrality and Availability of Cenvat Credit:
The Appellant contended that even if service tax was payable under reverse charge, it would be available as cenvat credit, resulting in a revenue-neutral situation. The Tribunal acknowledged this argument, referencing various case laws, including Jay Yuhshin Limited vs. Commissioner and Commissioner vs. Narmada Chematur Pharmaceuticals Limited.

7. Penalty Imposition under Section 80 of the Finance Act:
The Appellant argued against the imposition of penalties, citing confusion regarding the imposition of service tax under reverse charge and relying on Section 80 of the Finance Act. The Tribunal did not specifically address this issue in the final order, as the main demands were set aside.

Conclusion:
The Tribunal allowed the appeal filed by the Appellant and dismissed the appeal filed by the Department. The impugned order was set aside to the extent it confirmed the demand. The Tribunal concluded that the demands under BSS and ITSS were not sustainable, and the extended period of limitation could not be invoked. The Tribunal also upheld the Adjudicating Authority's decision to drop the demand related to the import of services from M/s Echostar.

← Previous Next →