2017 (9) TMI 224 - AT - Service Tax

Royalty - benefit of N/N. 17/2004-ST dated 10.09.2004 - IPR services - cess paid & R&D Cess Act - department entertained the view that the benefit of Notification dated 10.09.2004 is not available to Respondent, as the same applies only to service provider and not to the service receiver, who pays the service tax as a recipient of service under reverse charge mechanism - Held that - the provisions of Chapter V of the Finance Act should also be applicable in respect of the service tax paid under Section 66A ibid - In the present case, since the appellant is liable to pay service tax as a recipient of the taxable service, the provision of Section 66 ibid should also be applicable to it. In other words, upon fixing the responsibility for payment of service tax under reverse charge mechanism, no distinction can be placed between the service receiver and service provider for the purpose of Section 66 ibid. The benefit of exemption N/N.17/04-ST dated 10.09.2004 should also be available to the respondent - appeal dismissed - decided against Revenue.

Summary

Issues:
Interpretation of Notification No.17/2004-ST dated 10.09.2004 for service tax liability under reverse charge mechanism.

Analysis:
The appeal was against an order passed by the Commissioner (Appeals) concerning the service tax liability of the appellant, engaged in manufacturing turbo chargers, for royalty payments made to an overseas service provider for technical assistance. The dispute revolved around the applicability of Notification No.17/2004-ST dated 10.09.2004 to the appellant as a recipient of services under reverse charge mechanism. The department contended that the exemption under the notification was only for the service provider, not the recipient. The Adjudicating Authority confirmed a service tax demand, but the Commissioner (Appeals) set aside the order in favor of the appellant.

The Revenue argued that since the exemption for 'intellectual property' services was provided to the service provider, it did not apply to the appellant as the recipient under reverse charge mechanism. On the other hand, the appellant's advocate contended that under Section 66A of the Finance Act, the appellant, having paid service tax under reverse charge, should be considered the service provider, making the exemption applicable. The advocate relied on a Tribunal decision to support this argument.

The Tribunal analyzed Section 66 of the Finance Act, which outlines service tax provisions, and Rule 66A, which establishes the recipient's liability under reverse charge mechanism. The Tribunal concluded that when the recipient is liable to pay service tax, the provisions of Section 66 should apply to them, making them eligible for exemptions like the one in Notification No.17/2004-ST. Referring to a previous Tribunal decision, the Tribunal emphasized that the legal fiction created by Section 66A extends to concessions available under notifications when conditions are met. Therefore, the appellant, as a service recipient under reverse charge, should benefit from the exemption. The Tribunal dismissed the Revenue's appeal, upholding the Commissioner (Appeals) order.

In summary, the Tribunal's decision clarified that under the reverse charge mechanism, the recipient of services can avail of exemptions like those provided under Notification No.17/2004-ST dated 10.09.2004, even if the exemption is initially intended for the service provider. The legal fiction created by Section 66A extends to concessions available under notifications, ensuring that recipients fulfilling conditions can benefit from exemptions.