2023 (6) TMI 1246 - AT - Service Tax

Business auxiliary services - place of provision of services - import of service or not - export orders procured from foreign agents - technical inspection and certification services provided at the discharge Port by non-resident service provider - reverse charge mechanism - extended period of limitation - HELD THAT - It is well settled that the burden of proving malafide i.e. an intent to evade is upon the revenue as held by the decision of the Hon ble Supreme Court in the case of Uniworth Textiles Ltd. reported in 2013 (1) TMI 616 - SUPREME COURT - In the instant case, the Appellant had specifically averred before the adjudicating as well as the first appellate authority that they acted upon a legal opinion dated 20 March 2008 wherein they were advised about the non-taxability of the said services, which aspect has neither been dealt with nor controverted by the revenue. Therefore, the plea of bonafide belief appears to be available to the Appellant in light of the decision of this Tribunal in Delhi International Airport case 2019 (2) TMI 869 - CESTAT NEW DELHI . Moreover, it is also not in dispute that both these services (i.e., business auxiliary services and technical inspection certification services) were used for export and therefore, exempted vide Notification No. 41/2007- ST dated 6 October 2007 albeit by way of refund. Therefore, there is considerable force in the contention of the Appellant that the situation would have been revenue neutral and under such circumstances, no intention to evade can be attributed on the part of the Appellant - the demand beyond the normal period cannot sustain and deserves to be set aside. Even on merits, it is found that technical inspection and certification services were rendered at the discharge Port outside India and therefore could not be said to have been imported under Rule 3(ii) of the Taxation of Services (provided from outside India and received in India) Rules, 2006 being covered by Section 65 (105) (zzi) of the Finance Act, 1994 and there was no scope to invoke Rule 3(iii) of the said Rules. The entire demand with respect to Foreign Commission Agent for the period October 2007 to March 2011 is hit by limitation and the demand under Technical Inspection and Certification for the period October 2007 to March 2012 is not sustainable on merits and limitation - Appeal allowed.

Summary

Issues involved:
The judgment involves the alleged non-payment of service tax on a reverse charge basis under two taxable categories: (i) business auxiliary services in respect of export orders procured from foreign agents and (ii) technical inspection and certification services provided at the discharge Port by a non-resident service provider.

Business Auxiliary Services:
The appellant, engaged in exporting iron ore fines, availed the services of foreign brokers and commission agents for procuring export orders. The appellant contended that they believed these services were not taxable due to a legal opinion obtained in March 2008 and were exempted under Notification No. 41/2007-ST. The appellant argued that the situation was revenue neutral and no intent to evade tax could be attributed. The Tribunal found that the burden of proving malafide was on the revenue, and the appellant's bonafide belief was supported by relevant decisions. The Tribunal held that the demand for business auxiliary services from October 2007 to March 2011 was hit by limitation and set it aside.

Technical Inspection and Certification Services:
Regarding technical inspection and certification services, the appellant argued that these services did not fall under Rule 3(ii) of the Taxation of Services Rules as they were not performed wholly or partly in India. The Tribunal found merit in the appellant's submission and noted that the services were used for export, exempted under Notification No. 41/2007-ST. The Tribunal referenced a similar case where the tax demand was dropped, emphasizing that the services were utilized for export. The demand for technical inspection and certification services from October 2007 to March 2012 was deemed not sustainable on merits and limitation. The impugned order was set aside, and the appeal was allowed with consequential relief.

Separate Judgment by Judges:
The judgment was delivered by Hon'ble Shri P.K. Choudhary, Member (Judicial) and Hon'ble Shri K. Anpazhakan, Member (Technical) of the Appellate Tribunal CESTAT Kolkata on 28 June 2023.