2016 (8) TMI 145 - AT - Service Tax

Import of service or not - courier service and air travel agency service - last mile delivery of packages booked by their customers in India - taxability u/s 66A of the Finance Act, 1994 - Held that - The manner in which each of the taxable services are deemed to be received in India is laid down in the Taxation of Service (Provided from Outside India and Received in India) Rules 2006. Therefore, the leviability of a tax in the hands of recipient of a service will necessarily have to be in accordance to the provisions of the said Rules. Mere reliance on section 66A of Finance Act, 1994 without reference to the relevant provisions of the Rules is not sufficient to sustain a demand for service tax. The services rendered by the overseas entities to the appellant is a performance-based service and, to become taxable, requires that at least some portion of that be rendered in India. The role of the overseas entities commences upon the landing of the packages at the airport of destination. From there, the overseas correspondents ensure delivery of such packages to the consignees. It is therefore amply clear that the role of the overseas entity commences and ends beyond the border of India. It therefore, cannot be said to be in conformity with Rule 3 of the Taxation of Service (Provided from Outside India and Received in India) Rules 2006. - Demand set aside.

Summary

Issues:
Applicability of section 66A of Finance Act, 1994 to payments made to overseas entities for services provided at the destination in relation to packages booked in India.

Analysis:
The case involved an appeal against an order confirming tax liabilities for two financial years along with penalties under sections 76 and 77 of the Finance Act, 1994. The appellant, a provider of courier and air travel agency services, had entered into agreements with overseas entities for last-mile delivery of packages booked by customers in India. The Revenue contended that these services were taxable under section 66A of the Finance Act, 1994. The appellant argued that the services were not taxable as per Rule 3 of the Taxation of Service Rules and that they had already paid tax on consideration received from Indian customers. The Tribunal noted that section 66A places the tax burden on the recipient in India for taxable services by overseas providers, as per the Taxation of Service Rules. The original authority had considered the transfer of packages to overseas consignees as the taxable service, but the Tribunal found this interpretation flawed. The Tribunal emphasized the need to categorize the service under Rule 3, which the original order had failed to do.

The Tribunal determined that the services provided by overseas entities were performance-based and required some portion to be rendered in India to be taxable. However, the role of overseas entities in delivering packages only began at the destination airport and ended beyond India's borders, making it clear that the services did not conform to Rule 3 of the Taxation of Service Rules. Consequently, the Tribunal ruled that the services provided by overseas entities were not liable to service tax under section 66A of the Finance Act, 1994. The appeal was allowed, granting consequential relief.

In conclusion, the Tribunal's decision focused on the correct interpretation and application of section 66A of the Finance Act, 1994 in relation to services provided by overseas entities for packages booked in India. The ruling clarified the necessity of adhering to the Taxation of Service Rules and categorizing services correctly to determine tax liability accurately.