2009 (6) TMI 85 - AT - Service Tax

Import of Service Receipt of technical know-how and assistance from Japanese Company during the period September - October, 2004 for the purpose of manufacturing motorcycles in India - The appellant paid service tax on this amount of royalty paid to the Japanese company for the service (Intellectual Property Right service) rendered by the latter during the period October, 2004 to March, 2005. However, no service tax was paid to the department by the appellant in respect of the amount of royalty paid by them to the foreign company in respect of the Intellectual Property Right service from 10-9-2004 to 30-9-2004 held that - the appellant qua recipient of Intellectual Property Right service from abroad during the period 10-9-2004 to 30-9-2004, having paid royalty for such service in the month of October, 2004, is not liable to pay service tax on such service inasmuch as the service was notified by the Central Government for the purpose of levy of service tax w.e.f. 1-1-2005 only

Issues:
1. Liability of service tax on technical know-how and assistance received from a foreign company.
2. Applicability of Notification No. 36/2004-S.T. dated 31-12-2004.
3. Interpretation of the legal position regarding service tax on taxable services received from outside India.

Analysis:
1. The appellant received technical know-how and assistance from a Japanese Company for manufacturing motorcycles in India. The appellant paid royalty to the Japanese Company for the services provided. Service tax was paid on the royalty paid for the period from October 2004 to March 2005, but no service tax was paid for the period from 10-9-2004 to 30-9-2004. The department issued a show-cause notice demanding service tax, interest, and penalty, which was contested by the appellant. The Commissioner confirmed the demand of service tax, interest, and imposed a penalty equal to the tax amount. The appellant appealed against this decision.

2. The appellant contended that prior to 1-1-2005, service tax on taxable services received from outside India by a person resident in India was not liable to be paid. The appellant relied on the case of Hindustan Zinc Limited v. CCE, Jaipur, where it was recognized that the recipient of such services could not be held liable for paying service tax prior to 1-1-2005. The Larger Bench in the mentioned case held that the taxable service provided by a non-resident or from outside India, without an office in India, was specified as a taxable service with effect from 1-1-2005. Therefore, the recipient could not be held liable for paying service tax before this date.

3. The Tribunal found that the legal position established in the Hindustan Zinc Limited case was applicable to the present case. The appellant, as the recipient of Intellectual Property Right service from abroad during the period 10-9-2004 to 30-9-2004, was not liable to pay service tax on such services since the service was notified for the levy of service tax only from 1-1-2005 onwards. Consequently, the demand for service tax with interest was set aside, and the penalty imposed on the appellant was vacated. The appeal was allowed, ruling in favor of the appellant.

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