2017 (10) TMI 346 - AT - Service Tax

Reverse charge mechanism - Business Auxiliary Services - Commission paid to Foreign Agents - the period involved is 01.01.2005 to 30.04.2006 and 1.1.2005 to 28.2.2006 - Held that - reliance placed in the case of INDIAN NATIONAL SHIPOWNERS ASSOCIATION Versus UNION OF INDIA 2008 (12) TMI 41 - BOMBAY HIGH COURT , where it was held that Before insertion of section 66A with effect from 18-4-2006, there was no authority to levy service tax on Import of service - with regard to royalty paid to foreign agents and the period involved in this case stands fully covered by the judgement whereas in ST/29/2009 few days will be beyond the period as stated in the judgement cited supra i.e from 18.04.2006 to 30.04.2006. The demand beyond the period 18.04.2006 is sustainable and for quantification of the same, the appeal (ST/29/2009) requires to be remanded to the adjudicating authority - appeal allowed in part and part matter on remand.

Summary

Issues Involved:
Applicability of service tax on commission paid to foreign agents under reverse charge mechanism prior to 18.04.2006, and the liability for royalty paid to foreign agents.

Analysis:

1. Applicability of Service Tax on Commission Paid to Foreign Agents:
The appellants, manufacturers of various goods, paid commission to foreign agents for sales arrangements. The department contended that service tax was due on these commissions under "Business Auxiliary Service" under reverse charge mechanism. The issue was whether the appellants were liable to pay service tax on these commissions. The appellant's counsel cited a Bombay High Court judgment and a subsequent Supreme Court judgment to support their position. The Tribunal found that the issue was settled by the cited judgments. In one appeal, the entire period was covered by the judgment, while in the other, a few days fell beyond the judgment's coverage. The Tribunal upheld the demand for the period beyond the judgment's coverage and remanded the case to the adjudicating authority for quantification. Penalties were set aside due to the settled nature of the issue.

2. Liability for Royalty Paid to Foreign Agents:
In one of the appeals, the issue concerned royalty paid to foreign agents. The Tribunal determined that the period involved in this case was fully covered by a relevant judgment. The decision was in favor of the appellant, allowing the appeal with consequential relief. However, in the other appeal, a portion of the demand was set aside up to a certain date, and the case was remanded for quantification of the demand for the remaining days. The appellant was directed to pay the service tax along with interest for those specific days, while penalties were entirely set aside.

In conclusion, the Tribunal disposed of both appeals by allowing one with consequential relief and partly allowing the other by setting aside a portion of the demand and remanding the case for quantification. The decision was based on the applicability of relevant judgments and the specific periods involved in each appeal.