2019 (7) TMI 258 - AT - Service Tax

Technical inspection and certification services - reverse charge mechanism - section 66A of Finance Act, 1994 - HELD THAT - It is only a technical inspection of certifying agency that was intended to be the object of the tax and that service had to be rendered in relation to such technical inspection and certification - Notwithstanding the fact that the local suppliers released payments to the appellant only upon the issue of certificates, the service does not involve any information and nor does it contain technical information that required some expertise. Furthermore, the final inspection report prepared by the appellant, and relied upon in the show cause notice, were also retained by the appellant in their records indicating that these are not the material form of the services rendered. The decision of the Tribunal in M/S. AT CO. VERSUS C.S.T. DELHI 2016 (12) TMI 929 - CESTAT NEW DELHI , has laid down the principle that mere inspection, or certification, which does not have to fall back on any expertise of scientific or technical knowledge would not find coverage within this taxable service. We also take note that the role of the appellant in the entire transaction is to act as the agent of the overseas entity for the limited purpose of approving the shipments on the basis of certain specifications indicated by the overseas customers. The levy of tax on an activity that does not fall within the scope of section 65(105)(zzh) of Finance Act, 1994 cannot be approved. The matter remanded back to the original authority to decide on the merits of the demand taking note of our adjurements on the legality of levy under each of the services and for ascertainment of the tax on any consideration that remains sustainable thereafter - appeal allowed by way of remand.

Summary

Issues:
1. Tax liability under three heads for rendering different services.
2. Classification of services provided by the appellant.
3. Taxability on reverse charge basis.
4. Applicability of tax under section 65(105)(zzb) of Finance Act, 1994.
5. Taxability under section 65(105)(zzh) of Finance Act, 1994.

Analysis:

1. The appellant, M/s Birdy Exports Pvt Ltd, appealed against an order seeking to impose tax liability under three heads: technical inspection and certification services, business auxiliary services, and management consultancy services. The appellant argued that they were a buying agent for overseas customers and that the services provided did not fall under the specified taxable categories. The appellant contended that the liability should be limited to support services of business and commerce under section 65(105)(zzq) of the Finance Act, 1994. The Tribunal noted the need to ascertain the dominant service and remanded the matter to the original authority for a detailed examination of the tax liability under each service.

2. The appellant disputed the taxability on a reverse charge basis, citing the absence of legislative provisions prior to section 66A of the Finance Act, 1994. The Tribunal highlighted the need to determine if the amount sought to be taxed arose from consideration made by the appellant to the overseas service provider, as per the Supreme Court's decision in a relevant case. The matter was remanded for further clarification.

3. Regarding the tax under section 65(105)(zzb) of the Finance Act, 1994, the Tribunal noted the changes in taxability due to notifications and the need for a specific finding by the original authority. The classification of liability under this section was left unresolved pending a detailed examination.

4. The issue of taxability under section 65(105)(zzh) of the Finance Act, 1994, focused on whether the appellant's activities constituted technical inspection and certification services. The Tribunal analyzed the nature of the certificates issued by the appellant and concluded that the services provided did not align with the taxable category. The Tribunal emphasized the lack of technical expertise and scientific knowledge in the appellant's role, leading to the disapproval of tax liability under this section.

5. In conclusion, the Tribunal allowed the appeal by remanding the matter to the original authority for a comprehensive review of the tax demands under each service category. The decision highlighted the necessity for a proper assessment of the tax liability based on the services provided by the appellant, ensuring adherence to the legal provisions of the Finance Act, 1994.