2018 (4) TMI 617 - AT - Service Tax

Reverse Charge Mechanism - appellant availing services from outside India - deemed service provider - discharge of service tax liability from CENVAT credit account - contravention of provisions of Section 66A and Section 68 of the Finance Act 1994, Rule 6 of Service tax Rules 1994 and Rule 3 (4) of CCR 2004 - Held that - under CCR 2004 there is no bar for utilization of Cenvat credit for the deemed service provider to pay the service tax liability casted upon him in terms of Section 66A - In terms of Rule 2 (r) the Appellant is a deemed service provider - Rule 5 of Taxation of Service Rules (Provided from outside India and Received in India) Rules only refers to availing of Cenvat Credit and not utilization of cenvat credit. The restriction to utilize the cenvat credit came into Cenvat Credit rules by inserting explanation in rule 3 (4) vide N/N. 28/2012 CE (NT) dt. 20.06.2012 which says that CENVAT credit cannot be used for payment of service tax in respect of services where the person liable to pay tax is the service recipient - before 20.06.2012 there was no restriction upon the deemed service provider to pay the service tax liability from cenvat credit. The appellant is a person liable to Service Tax. Once appellant is person liable to service tax, he becomes provider of taxable service under Rule 2(r) and consequently becomes output service provider under Rule 2(p) of the Cenvat Credit Rules - the finding of the Commissioner not treating the appellant as output service provider, is not correct. Appeal allowed - decided in favor of appellant.

Issues:
1. Liability to pay service tax under reverse charge basis for availing services from outside India.
2. Allegations of contravening provisions of Section 66A and Section 68 of the Finance Act 1994, Rule 6 of Service tax Rules 1994, and Rule 3 (4) of Cenvat Credit Rules, 2004.
3. Demand of Service tax and penalty imposition.
4. Utilization of Cenvat credit for paying service tax on imported services.
5. Time bar for demands due to filing service tax returns.
6. Applicability of Circular No. b1/4/2006 - TRU issued by CBEC.
7. Interpretation of legal fiction and relevant case laws.

Analysis:
1. The Appellant was held liable to pay service tax under reverse charge basis for availing services from outside India. Show cause notices were issued alleging contravention of various provisions, leading to a demand of service tax and penalty imposition.
2. The Appellant contended that they correctly discharged their service tax liability from Cenvat credit, arguing that the recipient of service as a "Deemed Service Provider" under Section 66A is only for charging service tax on taxable service received from outside India. They relied on legal provisions and case laws to support their position.
3. The revenue supported the findings of the impugned order, citing relevant case laws and legal interpretations to justify the restrictions on utilizing Cenvat credit for paying service tax on imported services.
4. The Tribunal analyzed the Cenvat Credit Rules and relevant notifications to determine that before 20.06.2012, there was no restriction on deemed service providers to pay service tax from Cenvat credit. They referred to a previous judgment allowing the utilization of credit for similar cases.
5. Considering the period of dispute and applicable legal precedents, the Tribunal held that the impugned order was not sustainable and set it aside, allowing the appeal with consequential reliefs as per the law.
6. The judgment highlighted the importance of legal interpretations, case laws, and relevant provisions in determining the liability and applicability of rules regarding the payment of service tax on imported services and the utilization of Cenvat credit.

This detailed analysis of the judgment provides a comprehensive overview of the legal issues involved and the Tribunal's decision based on the arguments presented by both parties and the relevant legal framework.

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