2019 (2) TMI 488 - AT - Service Tax

Business Auxiliary Service - Reverse charge mechanism - commissions paid to the foreign agent, Service Tax liability - failure to discharge service tax - Held that - Tribunal applying the principles of law laid down in Indian National Ship Owners Association s case 2009 (12) TMI 850 - SUPREME COURT OF INDIA dropped the demand for the earlier period and confirmed for the period 18.4.2006 to 31.3.2007. Incidentally the respondent was not available during the course of hearing before this Tribunal - Since the issue of limitation has not been discussed by the adjudicating Commissioner, even though claimed to have been raised by the respondent before him. Since the issue of limitation has not been discussed by the adjudicating Commissioner, even though claimed to have been raised by the respondent before him - Appeal is allowed by way of remand.

Summary

Issues:
- Appeal against Order-in-Original No. 15/ST/COMMR/2016 dated 15.04.2010
- Service Tax liability on commissions paid to foreign service providers
- Demand for the period prior to 18.04.2006 and from 18.4.2006 to 31.3.2007
- Remand by Hon'ble Bombay High Court to decide the case after hearing on merits
- Consideration of issue of limitation
- Decision on interest and penalty

Analysis:
1. The appeal was filed by the Revenue against Order-in-Original No. 15/ST/COMMR/2016 dated 15.04.2010 passed by the Commissioner of Central Excise, Customs & Service Tax, Aurangabad. The case involved the payment of sales commission to foreign service providers during the period 2003-04 to 2006-07 without discharging Service Tax obligations. A show-cause notice was issued for the recovery of unpaid Service Tax amounting to &8377;2,00,79,284/- along with interest and penalty.

2. The Tribunal, following the judgment of the Hon'ble Bombay High Court and the Hon'ble Apex Court, upheld the demand for the period from 18.4.2006 to 31.3.2007 but dropped the demand for the period prior to 18.04.2006. Subsequently, the matter was remanded by the Hon'ble Bombay High Court to the Tribunal for a decision after hearing the parties on merits.

3. During the appeal hearing, the issue of limitation was raised by the appellant's advocate, stating that it was not discussed by the adjudicating authority or the Tribunal. Both parties, including the Revenue's representative, agreed that the matter should be remanded to the adjudicating authority for a decision on the issue of limitation related to the period from 18.4.2006 to 31.3.2007, along with other issues concerning interest and penalty.

4. The Tribunal, after hearing both sides and reviewing the records, found that the issue of limitation had not been adequately addressed by the adjudicating Commissioner, even though it was claimed to have been raised by the respondent. Therefore, the Tribunal decided to remand the matter to the adjudicating Commissioner for a detailed analysis of the limitation issue concerning the demand for the period 18.4.2006 to 31.3.2007, and the decision on interest and penalty would be made accordingly. The appeal was allowed by way of remand.