2006 (8) TMI 10 - AAR - Service Tax

Service Tax - Advance ruling application - As the activity in question is admitted by an on-going service, no question seeking advance ruling thereon can be entertained by the Authority

Summary

Issues:
Application for obtaining an advance ruling under section 96C of the Finance Act, 1994.

Analysis:
The crucial question in this case is whether the application for obtaining an advance ruling deserves admission or rejection. The applicant, a joint venture Indian company, sought an advance ruling on the classification of technical know-how under Section 65 of the Finance Act, 1994. The applicant had agreements with foreign collaborators for technical know-how in manufacturing pharmaceutical products. The Commissioner of Service Tax provided comments on the application. The Authority issued a notice to the applicant to show cause on the maintainability of the application, citing jurisdictional limitations under section 96D of the Act and the nature of the activity being an ongoing service.

The first ground for rejection was the jurisdictional limitation under section 96D of the Act, which prohibits the Authority from allowing the application if the question raised is already pending before any Central Excise Officer, Appellate Tribunal, or Court. The Commissioner stated that the question was pending before the Bombay High Court and had been decided by the CESTAT. However, it was argued that the question in the application was not the same as those already decided, and therefore, the first proviso to section 96D was not applicable.

The second ground for rejection was based on the definition of "advance ruling" under section 96A, which specifies that it pertains to a question regarding the liability to pay service tax for a proposed service. As the activity in question was an ongoing service, it was deemed that no question seeking advance ruling could be entertained. Consequently, the application was rejected based on these grounds. The decision was pronounced on August 29, 2006.