2008 (1) TMI 182 - AT - Service Tax

Commission paid to agents in foreign country for marketing goods in view of ruling of SC in All India Federation of Tax Practitioners v. Union of India & Board s Circular No. 36/4/2001 service tax cannot be levied for the service rendered out side India - service tax has been deposited before the issue of SCN - stay application is allowed by granting waiver of pre-deposit of the penalty amount and staying its recovery

Summary

Issues:
1. Waiver of pre-deposit of penalty amount under Section 78 of the Finance Act.
2. Applicability of service tax on payments made for services rendered outside India.
3. Request for out of turn hearing due to the amount involved in the matter.

Analysis:

Issue 1 - Waiver of pre-deposit of penalty amount under Section 78 of the Finance Act:
The appellants sought waiver of pre-deposit of a penalty amount of Rs.1,50,00,000/- under Section 78 of the Finance Act, in addition to other penalties. They had already deposited the Service tax amount of Rs. 1,22,11,139/- before the show cause notice was issued. The learned Counsel argued for the waiver, citing a ruling of the Apex Court and a Board Circular supporting the plea. The Tribunal, after considering submissions from both sides, found that the service tax is not leviable for services rendered outside India as per the Apex Court's decision. Consequently, the Tribunal allowed the stay application by granting waiver of pre-deposit of the penalty amount and staying its recovery until the appeal's disposal.

Issue 2 - Applicability of service tax on payments made for services rendered outside India:
The learned Counsel contended that service tax is not leviable when services are rendered outside India, relying on the Apex Court's ruling and a Board Circular. On the other hand, the learned SDR argued in favor of levying service tax for payments made from India through Foreign Exchange. However, the Tribunal, after examining the impugned order and relevant judgments, found that the Apex Court had clearly stated that service tax cannot be imposed for services rendered outside India. The Tribunal also noted that the service tax amount had been paid before the show cause notice was issued, further supporting the appellants' argument.

Issue 3 - Request for out of turn hearing due to the amount involved in the matter:
The appellants requested an out of turn hearing due to the substantial amount involved in the matter, exceeding Rs. 2 crores including penalties. Considering the magnitude of the amount, the Tribunal decided to list the appeal for an out of turn hearing on a specified date to expedite the resolution process.

In conclusion, the Tribunal granted the waiver of pre-deposit of the penalty amount, citing the Apex Court's decision and the Board Circular supporting the appellants' position regarding the non-leviability of service tax for services rendered outside India. The appeal was scheduled for an out of turn hearing due to the significant amount involved in the case.