2018 (9) TMI 391 - AT - Service Tax

Place of supply of services - Services of promotion of their products availed by an agent outside India - Reverse charge mechanism - Section 66A of FA - Suppression of facts or not? - Extended period of limitation - Held that - In the instant case, the period of dispute is 18.04.2006 to 30.09.2007. In the identical circumstances, in the case of Tech Mahindra Limited vs. CCE, Pune 2015 (2) TMI 392 - CESTAT MUMBAI it has held that failure to disclose the services in the ST-3 return is insufficient to invoke the extended period of limitation - So long as the recipient of service is located in India, the said service would be taxable as the service received in India. In the instant case, while the service provider located abroad, he has been procuring orders for the appellant located in India. The service falls under clause (iii) of Rule 3 of Taxation of Services (Provided from outside Indian and received in India) Rules, 2006 - Thus, the demand of duty is sustainable both, on merits as well as limitation. Penalties u/s 76 and 78 of FA - Held that - Simultaneous penalties under Section 76 and 78 cannot be imposed. Consequently, the penalty under Section 76 is set-aside and the penalty under Section 78 is upheld - the benefit to avail 25% is extended to the appellant subject to payment of entire tax along with interest and 25% of penalty within one month of the date of receipt of the order. Decided against appellant-assessee.

Summary

Issues:
- Confirmation of demand of service tax and imposition of penalties under Section 76, 77, and 78.
- Taxability of services provided by an agent outside India.
- Invocation of extended period of limitation.
- Imposition of penalties under Section 76 and 78.

Analysis:

1. Confirmation of Demand of Service Tax and Penalties:
The appeal was filed against the confirmation of demand of service tax and penalties under Section 76, 77, and 78. The appellant argued that the service provided to them by an agent outside India for promoting their products was solely used for exporting goods outside India and hence not taxable. The appellant relied on legal precedents and circulars to support their argument. However, the Tribunal found that the service falls under the clause of Taxation of Services Rules, making it taxable as long as the recipient of the service is located in India. Therefore, the demand of duty was upheld both on merits and limitation.

2. Taxability of Services Provided by Agent Outside India:
The appellant contended that since the commission agent was situated abroad and not in India, the service did not fall under the ambit of Section 66A of the Finance Act, 1994. However, the Tribunal referred to a decision by the Hon'ble Bombay High Court, stating that business activities conducted by a commission agent located abroad for a manufacturer in India are taxable under Section 66A. Therefore, the Tribunal concluded that the service provided by the agent outside India was taxable as it was received by a recipient located in India.

3. Invocation of Extended Period of Limitation:
Regarding the invocation of the extended period of limitation, the appellant argued that there was no willful suppression of facts or misdeclaration, and hence, the extended period should not have been invoked. The Tribunal referred to a similar case where it was held that failure to disclose services in the ST-3 return is insufficient to invoke the extended period of limitation. However, in this case, the Tribunal found that the service provider located abroad was procuring orders for the appellant in India, making the service taxable under the relevant clause of the Taxation of Services Rules.

4. Imposition of Penalties under Section 76 and 78:
The appellant challenged the imposition of penalties under Section 76 and 78. The Tribunal noted a decision by the Hon'ble Gujarat High Court stating that simultaneous penalties under Section 76 and 78 cannot be imposed. Consequently, the penalty under Section 76 was set aside, and the penalty under Section 78 was upheld. Additionally, the Tribunal granted the appellant the option to pay 25% of the penalty under Section 78 if the entire tax, interest, and 25% of the penalty were paid within one month of the order.

In conclusion, the Tribunal upheld the demand of service tax and penalties under Section 78, while setting aside the penalty under Section 76. The appellant was granted the option to pay a reduced penalty under Section 78 subject to meeting the specified conditions within the given timeframe.