2009 (6) TMI 257 - AT - Service Tax

Liability of recipient in case of import of services appellant have entered into technology agreement with person outside India against payment of royalty and technical know-how fees demand under Consulting Engineer Services for receipt of technical services - In the case of Hindustan Zinc Ltd. the Larger Bench of the Tribunal has held that service receiver is not liable to pay Service Tax prior to 1-1-2005 if the service provider is situated abroad and has no office in India. - in view of the fact that the service was received outside of India from a person who is not permanent established in India and the demand related to the period from 1999 to 2001 i.e. prior to 1-1-2005, demand is not sustainable Revenue s appeal is rejected

Summary

Issues: Liability of service tax on the appellants for technical services received from overseas service provider prior to 1-1-2005.

Analysis:
The case involved the appellants, engaged in manufacturing Cotton Fabrics, who entered into a technology agreement with an overseas service provider, paying royalty and technical know-how fees for services received. The department contended that the technical services received fell under the definition of services provided by a Consulting Engineer as per Section 65(13) of the Finance Act, 1994. Consequently, the appellants were required to obtain service tax registration, file service tax returns, and pay service tax at 5% amounting to Rs. 43.01 lakhs for the period 1999 to 2001. The adjudicating authority confirmed the demand and imposed penalties, which was challenged by the appellants in an appeal.

During the hearing, the Revenue argued that the appeal was filed as the facts were not similar to a previous case involving M/s. Hindustan Zinc Ltd., where it was held that a service receiver is not liable to pay service tax before 1-1-2005 if the service provider is situated abroad without an office in India. The Revenue contended that the service provider in this case was authorized by M/s. Ashima Ltd. and fell under the definition of "Consulting Engineer." On the other hand, the respondent's advocate emphasized that the service provider had no office in India and the service was provided from outside the country, even though it was received in India. The advocate argued that the question was not about the levy of Service Tax but about the liability of the respondents to pay it. Referring to the Larger Bench decision in Hindustan Zinc Ltd.'s case, the advocate asserted that there was no liability against the respondent prior to 1-1-2005.

The Tribunal, after considering the arguments, upheld the Commissioner (Appeals)'s decision, noting that the service was received outside India from a non-permanently established person in India, and the demand pertained to the period before 1-1-2005. Consequently, the Tribunal found no reason to set aside the Commissioner (Appeals)'s order. As the issue did not require further detailed examination at the final hearing stage, the appeal filed by the Revenue was disposed of at that stage. The Tribunal rejected the stay petition and the Revenue's appeal accordingly.