2008 (9) TMI 209 - AT - Service Tax

Appellant had received technical know-how from foreign collaborators - tax was demanded for the period November, 2000 to March, 2004 - held that as a recipient of the consulting engineer service from outside India, the appellant was not liable to pay service tax prior to 1-1-2005 - therefore, levy of tax is without the authority of law

Summary

Issues:
Taxability of technical know-how received from foreign collaborators under the service category of 'Commuting Engineer' prior to 1-1-2005.

Analysis:

Issue 1: Taxability of technical know-how received from foreign collaborators under the service category of 'Commuting Engineer' prior to 1-1-2005

The appellant received technical know-how from foreign collaborators for which they had paid, alleged to be covered under the taxable service of 'Commuting Engineer'. The revenue contended that the appellant, as per the agreement, undertakes to pay the tax and thus is liable to pay the tax on behalf of the foreign supplier. However, the Larger Bench of the Tribunal in the case of Hindustan Zinc Ltd. had already settled this issue. The Tribunal concurred with the view expressed in previous cases and held that as a recipient of the 'consulting engineer' service from outside India, the appellant was not liable to pay service tax prior to 1-1-2005. The Tribunal emphasized that the recipient of services provided by a non-resident or outside India without an office in India could not be held liable for paying service tax before 1-1-2005. Therefore, the levy of tax in the present case, related to a period before 1-1-2005, was deemed unauthorized by law. Consequently, the impugned order was set aside, and the appeal was allowed with consequential relief.

This judgment clarifies the taxability of services received from foreign collaborators under the 'Commuting Engineer' category before 1-1-2005, providing a clear legal position based on the interpretation of relevant rules and notifications. The decision of the Larger Bench of the Tribunal in Hindustan Zinc Ltd. case serves as a precedent, determining that recipients of services from non-residents without offices in India are not liable to pay service tax before 1-1-2005. The judgment ensures consistency in the application of tax laws concerning cross-border services and protects recipients from unauthorized tax levies based on retrospective interpretations.