2014 (9) TMI 303 - AT - Service Tax

Waiver of pre-deposit - Business Auxiliary Service - import of services - reverse charge mechanism - revenue neutrality - commission paid to unidentified overseas agents - appellant has reduced the price in the invoices for making payment to the foreign agent of their buyer. - extended period of limitation - Held that - As the appellant has also availed DGFT benefit on these payments as commissions , prima facie, it appears that commissions are paid to the foreign agents through the buyer of the goods but are directly borne by the appellant. Adjudicating authority has also brought out in Para 1.7 of the adjudication order dt.29.11.2013 that the role of such agent is to contact the appellant for requirement, then negotiate the price and other conditions and to ensure that the consignment reaches in time and the same is delivered to the consignees without any problem. It is also felt on revenue neutrality that the exemption under Notification No.41/2007-ST, dt.06.10.2007 is by way of refunds only after Service Tax is paid under reverse charge as per Section 66A of the Finance Act, 1994 and that too after fulfilling certain conditions. The refund of Service Tax so payable is not automatic. Appellant has, therefore, not made out a case for complete waiver of the confirmed dues and is required to be put to certain conditions. - stay granted partly.

Summary

Issues:
Stay application against Service Tax demand, liability under Business Auxiliary Service, commission allowed in invoices, reverse charge mechanism, penalties under Sections 76, 77 & 78 of Finance Act, 1994, revenue neutrality, refund under Notification No.41/2007-ST.

Analysis:
The appellant filed a stay application against a Service Tax demand confirmed under OIO No.SUR-EXCUS-001-COM-022-13-14, amounting to &8377; 1,13,34,954/- along with penalties imposed under Sections 76, 77 & 78 of the Finance Act, 1994. The issue revolved around the commission allowed in invoices, which the Revenue claimed as chargeable to Service Tax under Business Auxiliary Service under Section 65 (105)(zzb) of the Finance Act, 1994, using the reverse charge mechanism. The appellant argued that they are not liable to pay Service Tax as they did not receive any services in India from the foreign agent, and the payments were made by the buyers of the exported goods. The appellant contended that they reduced the price in the invoices to make payments to the foreign agent of their buyer, and the Customs documents supported this claim. Additionally, the appellant had already paid &8377; 8,55,443/- with respect to commission paid in excess of 10% as per an exemption notification. The appellant relied on a previous order to support their argument that demanding Service Tax on exports would be revenue neutral due to the refund available under Notification No.41/2007-ST, dated 6.10.2007.

The Revenue argued that the declarations regarding commissions were made only before the Customs authorities and not the Service Tax authorities. They contended that the extended period for demand would be applicable as no intimation was made to the jurisdictional Service Tax authorities. The Revenue asserted that the commissions deducted from the invoices were not to be considered as discounts, as the appellant had also availed export incentives on these commissions under DGFT Policy circulars for revenue neutrality. They highlighted that the refund of Service Tax paid under Notification No.41/2007-ST, dated 6.10.2007, was subject to specific conditions and payment under reverse charge, as discussed in the adjudication order.

After hearing both sides and examining the case records, it was observed that the price of goods was reduced on account of the commission paid, which the appellant had also availed as DGFT benefits. The adjudicating authority emphasized the role of the foreign agent in negotiating prices, ensuring timely delivery, and facilitating payments, indicating that the commissions were directly borne by the appellant. Considering the appellant had not proven a case for complete waiver of the confirmed dues, they were directed to pre-deposit an additional amount of &8377; 5 lakhs within eight weeks. A stay on the recovery of the remaining amounts was granted subject to the payment of the additional sum, with further orders scheduled for verification and compliance by specific dates.

This judgment underscores the complexities of Service Tax liability, the nuances of commission payments in international transactions, and the importance of fulfilling conditions for refunds under relevant notifications to ensure revenue neutrality.