2009 (10) TMI 45 - HC - Service Tax

Commission - Recipient of services situated outside India - services are performed in India - CESTAT (2009 -TMI - 34778 - CESTAT, NEW DELHI ) hold that prima facie the activities does not appear to be export of services and hence directed the petitioner to pre-deposit Rs. 70 crores - petitioner challenged the interim order of CESTAT before the HC - held that - the case at hand is not that of plain and simple import of goods. - The agreement makes it clear that MS provides services to the petitioner and the petitioner provides services to MS. The consumers are based in India, both destination and consumption is in India. Indian consumers pay for services which go out to the owners, namely, the Holding Company and part of it comes back to India in the shape of commission. Economic and commercial activities also take place in India. - both sides have arguable case and final determination of these issues is to be done in the first instance by the Tribunal only - order of CESTAT upheld - petition dismissed.

Issues Involved:

1. Liability of commission received by the petitioner to service tax.
2. Validity of the adjudicating authority's order raising demand.
3. Tribunal's conditional stay order requiring pre-deposit.
4. Classification of services under Export of Service Rules, 2005.
5. Relevance of Supreme Court judgments and existing precedents.
6. Applicability of Circulars and their binding nature on Tribunals/Courts.
7. Principles governing grant of stay applications.

Detailed Analysis:

1. Liability of Commission to Service Tax:
The petitioner, Microsoft Corporation (India) Private Ltd., received commission for providing various technical support services under an agreement with Microsoft Operations, Singapore. The respondent argued that this commission is subject to service tax. The adjudicating authority upheld this view, asserting that the services were provided in India and did not qualify as export of services under Rule 3(1)(iii) of the Export of Service Rules, 2005.

2. Validity of Adjudicating Authority's Order:
The adjudicating authority's order-in-original dated 23.9.2008 raised a demand of over Rs. 255 crores, including service tax and penalties. The petitioner challenged this order, arguing that the services rendered qualified as export services and were thus exempt from service tax. The Tribunal noted that the adjudicating authority had formulated and answered four issues against the petitioner, concluding that the services did not constitute export services.

3. Tribunal's Conditional Stay Order:
The petitioner sought a complete waiver of the pre-deposit condition imposed by the Tribunal's stay order. The Tribunal directed the petitioner to deposit Rs. 70 crores and stayed the realization of the balance demand. The petitioner contended that similar cases had been granted unconditional stay by other Tribunal benches, and thus, it should receive the same treatment.

4. Classification of Services under Export of Service Rules, 2005:
The petitioner argued that its services fell under the third category of Rule 3, which pertains to services provided in relation to business or commerce to a recipient located outside India. The Tribunal, however, relied on the Supreme Court judgment in All India Federation of Tax Practitioners & Ors. v. Union of India & Ors., which categorized services into property-based and performance-based, with the place of performance being decisive for taxability.

5. Relevance of Supreme Court Judgments and Existing Precedents:
The Tribunal heavily relied on the Supreme Court judgment in All India Federation of Tax Practitioners, which held that service tax is a VAT on commercial activities, levied only on services provided within the country. The Tribunal distinguished the present case from other Tribunal decisions cited by the petitioner, noting that those cases involved different factual scenarios.

6. Applicability of Circulars and Their Binding Nature:
The petitioner cited a Circular dated 24.2.2009, which clarified the applicability of Rule 3 in favor of entities like the petitioner. The respondent countered that courts and tribunals are not bound by such circulars, citing Supreme Court judgments in CCE v. Dhiren Chemical Industries and others. The Tribunal found that the circular did not alter the legal position established by the Supreme Court.

7. Principles Governing Grant of Stay Applications:
The Tribunal considered the principles laid down by the Supreme Court for granting stay applications, noting that a prima facie case alone is insufficient for granting interim relief. The Tribunal found that the petitioner had not demonstrated undue hardship or financial difficulty and thus directed a pre-deposit of Rs. 70 crores. The High Court upheld this order, emphasizing that the Tribunal had exercised its discretion correctly and equitably.

Conclusion:
The High Court dismissed the writ petition, affirming the Tribunal's order requiring a pre-deposit and staying the balance demand. The Court granted the petitioner four weeks to comply with the deposit requirement. The decision underscores the importance of adhering to established legal principles and the discretionary nature of interim relief in tax matters.

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