2014 (7) TMI 32 - AT - Service Tax

Import of services - reverse charge - Business Auxiliary service Appellant, exporter of Cotton fabrics, engaged agents to various European countries for canvassing orders and paid commission Revenue contends that it was taxable under the provisions of rule 2(1) (d) (iv) of Service Tax Rules, 1994 - Commissioner (Appeals) set aside the portion of demand prior to 18.04.2006 - Held that - dispute is now well settled that prior to introduction of section 66A in Finance Act, 1994, no demand for service tax from recipient of service under reverse charge mechanism as per rule 2 (1) (d) (iv) could be sustained. The position has been affirmed by Apex Court as reported at of UOI Vs Indian National Shipowners Association - 2009 (12) TMI 850 - SUPREME COURT OF INDIA - already paid more than the actual tax liability which they need to have paid towards tax for the period from 18-04-06 to Sept 06. Appellant is not asking for refund of tax paid - Penalty set aside - Decided in favour of assessee.

Summary

Issues:
1. Service tax liability for the period prior to 18-04-06.
2. Imposition of penalties under various sections of the Finance Act, 1994.

Analysis:
1. Service tax liability for the period prior to 18-04-06:
The case involved two appeals, one by the assessee and the other by the Revenue, against the same impugned order. The assessee, an exporter of cotton yarn, had not paid service tax on commissions to agents abroad during the period Nov 04 to Sept 06. The Revenue contended that service tax should have been paid as per rule 2(1)(d)(iv) of Service Tax Rules, 1994. The assessee paid the tax and interest for a specific period but later faced a show cause notice for demanding more tax, interest, and penalties. The Commissioner (Appeals) referred to a decision of the Bombay High Court and held that the service tax demand for the period before 18-04-06 was not sustainable due to the rule being ultravires the provisions of the Finance Act, 1994. The Commissioner confirmed the tax liability from 18-04-06 onwards and upheld the penalties imposed by the adjudicating authority.

2. Imposition of penalties under various sections of the Finance Act, 1994:
The Revenue appealed against the dropping of the demand for the period before 18-04-06. However, it was established that prior to the introduction of section 66A in the Finance Act, 1994, no demand for service tax under reverse charge mechanism could be sustained. This position was affirmed by the Apex Court. Therefore, the Revenue's appeal was dismissed. On the other hand, the appellant-assessee's appeal was allowed as they had already paid more than the actual tax liability for the relevant period. The Tribunal found merit in their argument, considering the confusion among taxpayers regarding tax liability on the recipient of service, which got resolved through later court decisions. Hence, the penalties imposed were set aside.

In conclusion, both appeals were disposed of accordingly, with the Revenue's appeal being dismissed due to the settled position on service tax liability before 18-04-06, and the appellant-assessee's appeal being allowed based on the excess tax already paid and the confusion surrounding tax liability issues.