2018 (3) TMI 861 - AT - Service Tax

Reverse charge mechanism - Commission paid to overseas commission agents for procuring the orders from them - liability of service tax - Held that - for the period from 09.07.2004 to 18.04.2006, the question of demand on service tax liability under reverse charge mechanism does not arise, as has been settled by the Apex Court various decisions - demand for this period withheld. Period post 18.04.2006 to 31.10.2006 - Held that - even if the amounts are paid service tax they are availed the CENVAT credit it is undisputed as commission is towards the business activity. Hence the question of Revenue Neutrality arises - demand set aside. Appeal dismissed - decided against Revenue.

Summary

Issues:
- Service tax liability on commission paid to overseas agents
- Application of reverse charge mechanism
- Availment of CENVAT credit for service tax paid
- Revenue Neutrality

Analysis:

1. Service tax liability on commission paid to overseas agents:
The appeal was filed by the Revenue against an Order-in-Appeal demanding service tax on commission paid to overseas commission agents for procuring orders. The Adjudicating Authority confirmed the demands raised, penalties, and interest. The First Appellate Authority set aside the Order-in-Original after considering the provisions of Section 66A of the Finance Act, 1994. The Revenue contended that commission on orders constitutes services received in India. However, the Tribunal found no merit in the Revenue's case for the period in question, citing precedents like the Indian National Ship Owners case, and held that the impugned order did not require interference.

2. Application of reverse charge mechanism:
For the period post 18.04.2006, the Learned Counsel argued that even if service tax was paid, CENVAT credit was availed, leading to revenue neutrality as the commission was related to business activities. The Tribunal acknowledged the concept of revenue neutrality, citing the Jet Airways case, where it was held that such claims could be made for a genuine belief in non-payment of service tax. Consequently, the Tribunal upheld the impugned order, stating it was correct and legal without requiring any interference.

3. Availment of CENVAT credit for service tax paid:
The argument regarding the availment of CENVAT credit for the service tax paid was crucial in establishing revenue neutrality for the period post 18.04.2006. The Tribunal accepted the submissions made by the Learned Counsel, emphasizing that the commission was linked to business activities, thus justifying the availment of CENVAT credit and supporting the claim of revenue neutrality.

4. Revenue Neutrality:
The concept of revenue neutrality played a significant role in the Tribunal's decision, especially concerning the period post 18.04.2006. By considering the claim of revenue neutrality in light of the Jet Airways case and the bonafide belief in non-payment of service tax, the Tribunal concluded that the impugned order was correct and legally sound, leading to the rejection of the appeal.

In conclusion, the Tribunal upheld the impugned order, dismissing the appeal filed by the Revenue, based on the analysis of service tax liability, reverse charge mechanism, CENVAT credit availment, and the concept of revenue neutrality as applied to the case.