2009 (11) TMI 522 - AT - Service Tax

Waiver of pre-deposit - demands of service tax Business Auxiliary Service assailed on the ground of exemption under export of services management, maintenance or repair service - services provided by appellant was in India - Commissioner held that this appellant has marketed for the goods in India and activities were undertaken in India Held that - benefit of service having accrued in India the appellant had not provided export of service - appellant has made deposit of Rs. 1,19,12,350/- and direct that as an interim measure, pre-deposit of Rs. 1 crore - balance demand of service tax and penalty shall be stayed till disposal of the appeal

Summary

Issues:
Service tax demand on 'business auxiliary service' and 'management, maintenance or repair service'.

Analysis:
The appellant appealed to the Tribunal against the order raising a service tax demand of Rs. 8,13,15,324/-, with a stay application citing a deposit of Rs. 19,12,350/-. The demand was categorized into two: Rs. 6,97,58,354/- for 'business auxiliary service' and Rs. 1,15,56,970/- for 'management, maintenance or repair service'. The appellant argued that the services provided fell under the category of export services and should be exempted, referring to specific agreements and payment details.

The appellant contended that the service tax demand under 'business auxiliary service' for the period April 2006 to March 2007 was Rs. 6,17,40,743/-, along with a demand of Rs. 5,35,077/- for the period July 2003 to November 2003. The appellant highlighted agreements related to business auxiliary service and representation agreements to support the claim of services falling under export services. For 'management, maintenance or repair service', the appellant argued that the demand was covered by the payment made, as per the appeal folder details.

The Revenue argued that the appellant was rightly brought under the service tax as there was no export of service, emphasizing that services provided were exhausted in India and hence taxable. Referring to a similar case involving Microsoft Corporation, the Revenue sought substantial pre-deposit. After hearing both sides and examining various submissions, the Tribunal observed that the services provided by the appellant were in India, as per the Commissioner's findings. It was noted that the benefit of service accrued in India, leading to the conclusion that no export of service was provided.

Considering the aspects presented and the deposit made by the appellant, the Tribunal directed an interim pre-deposit of Rs. 1 crore within eight weeks. The realisation of the balance demand of service tax and penalty was stayed pending the appeal's disposal. The Tribunal clarified that the order was based on a prima facie consideration of the factual and legal aspects involved.