2009 (8) TMI 393 - AT - Service Tax

Services received from abroad during August 2002 to 18-4-2006 - We find that the demand is confirmed against ABB, as recipient of the impugned services, as per rule 2(1)(d)(iv) of the Rules. Rule 2(1)(d)(iv) authorizes the authorities to recover service tax leviable on services provided by a person who is non-resident or is from outside India and does not have any office in India, from the person receiving such service in India. In Indian National Shipowners Association s case (supra) the Hon ble High Court had held that demand of service tax for the period prior to 18-4-2006 invoking rule 2(1)(d)(iv) of the Rules was not sustainable.- in view of above decision, demand is not sustainable for period prior to 18-4-06 further it could not be held that liability to tax on services received from foreign companies was not known to assessee, plea of limitation on ground of revenue neutrality could not be advanced - However, since the department was aware of the nature of the impugned transactions as early as in July 2005 from the agreements furnished and tax paid from the ST 3 returns periodically filed by ABB as an assessee providing taxable services, we find the claim that show-cause notice dated 5-12-2007, was barred by limitation

Issues:
1. Liability of service tax for services received from foreign companies.
2. Applicability of provisions prior to the enactment of section 66A of the Act.
3. Validity of demand for the period after the enactment of section 66A.
4. Plea of limitation raised by the appellant.
5. Revenue neutrality and suppression of facts.
6. Validity of the show-cause notice issued.

Issue 1: Liability of service tax for services received from foreign companies
The appellant, M/s. ABB Ltd., Bangalore, received various services from foreign companies, leading to a demand for service tax, education cess, interest, and penalties. The demand was based on the appellant being the recipient of services under specific sections of the Finance Act, 1994. The demand was raised for the period from August 2002 to June 2006, invoking a longer period under the proviso to section 73(1) of the Act.

Issue 2: Applicability of provisions prior to the enactment of section 66A of the Act
The appellant argued that prior to the enactment of section 66A in 2006, there were no provisions authorizing the collection of tax on services received from foreign entities. Citing judicial authorities, the appellant contended that the authority to collect tax on services received from non-residents was vested only after the insertion of section 66A in the Act in 2006.

Issue 3: Validity of demand for the period after the enactment of section 66A
Regarding the demand for the period after the enactment of section 66A, the appellant claimed that the extended period of limitation could not be validly invoked as the appellant could have availed Cenvat credit for the tax paid. The appellant relied on various judgments to support this claim, emphasizing a revenue-neutral situation.

Issue 4: Plea of limitation raised by the appellant
The appellant argued that the show-cause notice issued for the period from April 2006 to June 2006 was outside the normal limitation period. The appellant contended that the notice was barred by limitation as the department was aware of the transactions since July 2005, and the notice was issued in December 2007.

Issue 5: Revenue neutrality and suppression of facts
The appellant highlighted that paying the impugned tax would have allowed them to claim Cenvat credit, resulting in a revenue-neutral situation. The appellant asserted that there was no intention to evade tax, and the longer period could not be invoked. The appellant cited relevant case law to support this argument.

Issue 6: Validity of the show-cause notice issued
The Tribunal examined the plea of limitation raised by the appellant for the period from April 2006 to June 2006. Considering the revenue neutrality argument and the department's awareness of the transactions, the Tribunal found the show-cause notice issued in December 2007 to be barred by limitation. Consequently, the entire demand, including interest and penalties, was deemed not sustainable, leading to the appeal being allowed in favor of the appellant, ABB Ltd.

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