2011 (2) TMI 174 - AT - Service Tax

Taxable event - Designs, technical know-how etc., which were admittedly prepared by the appellant in Boston, stand transferred by them to IOCL - The taxable event has not occurred in India, inasmuch as the activity of development of technology, technical information and know-how, transfer of design, drawing etc., have taken place in USA - The consumption of such services in India, when admittedly no such service stands provided by the appellant in India, cannot be held to be a taxable event. Demand - Limitation - provisions of section 73 - Any bona fide lapse not to make enquiries about its obligation to pay duty/tax, cannot be made reason for invocation of extended period unless there is evidence to show that such lapse was on account of mala fide intention, and with guilty mind of avoiding payment of tax - There being none in the present case, we are of the view that the demand having been raised beyond the normal period of limitation, is barred by limitation.

Summary

Issues:
1. Confirmation of Service Tax demand and penalties imposed.
2. Jurisdiction of Indian Service Tax authority over services provided outside India.
3. Bar on limitation for demand raised beyond the normal period.

Confirmation of Service Tax demand and penalties imposed:
The judgment confirms the demand of Service Tax of Rs. 69,70,343 against the appellant for providing "Consulting Engineer Services" to M/s IOCL Gujarat. The appellant, a USA-based company, entered into agreements with IOCL for designing and providing engineering services related to a specific unit. The Revenue contended that these services fell under the scope of "Consulting Engineer" services, making the appellant liable to pay service tax. The show-cause notice proposed recovery of the service tax amount, interest, and penalties. The appellant challenged the order on various grounds, arguing that the services provided were essentially transfer of technical know-how and were rendered outside India, thus not falling under the purview of service tax.

Jurisdiction of Indian Service Tax authority over services provided outside India:
The appellant argued that the services were provided from the USA and, therefore, outside the jurisdiction of the Indian Service Tax authority. They contended that the taxable event should be where the services were rendered, not where they were consumed. The Commissioner, however, held that since the services were consumed in India by IOCL, located within Indian territorial waters, they should be treated as provided in India. The Tribunal disagreed, emphasizing that the transfer of technical know-how and design occurred in the USA, making the taxable event outside India. They cited circulars and clarifications stating that services provided abroad are not subject to service tax unless provided within India.

Bar on limitation for demand raised beyond the normal period:
The demand for service tax was raised for the period 2000-2001 through a show-cause notice issued in 2005, invoking the extended period of limitation. The Commissioner held that the appellant should have known about the tax liability and suppressed the facts from the department until detected by the Revenue Audit Authority. The Tribunal noted that the extended period of limitation applies only in cases of fraud, collusion, wilful misstatement, or suppression of facts with intent to evade payment. Since there was no evidence of mala fide intent on the part of the appellant, the demand raised beyond the normal limitation period was deemed barred by limitation. The Tribunal set aside the demand, interest, and penalties based on these grounds.

In conclusion, the Tribunal allowed the appeal on the grounds of jurisdiction and limitation, setting aside the demand, interest, and penalties. The judgment clarified that the merits of whether the services provided fell under "Consulting Engineer" services were not addressed in the decision.