2011 (4) TMI 1170 - AT - Service Tax

Tribunal Orders 50% Pre-Deposit in Service Tax Dispute Appeal

The Tribunal ruled in favor of a partial pre-deposit for the appellants in a service tax dispute. The appellants' plea to dispense with pre-deposit was ... Stay application - pre-deposit of service tax along with penalty - service tax stands confirmed against the appellants as recipient of services from a foreign merchant banker – Held that:- appellants have not been able to show that the agreement entered into by them with service provider was with the Indian company, condition regarding the foreign person not having office in India was done away w.e.f 19-4-2006. As such, at this prima facie stage, appellants have not been able to make strong case in their favour so as to allow stay petition unconditionally, appellants have also not pleaded any financial hardship, appellants/applicants directed to pre-deposit 50% of the duty demand within a period of 6 (six) weeks from today. On such deposit, pre-deposit of balance amount of duty and the entire amount of penalty stands waived and recovery thereof stayed during pendency of the appeal Issues:Prayer to dispense with pre-deposit of service tax, applicability of Section 66A of the Finance Act, liability of service recipient, contention on limitation, nature of services provided by foreign company, financial hardship plea.Analysis:1. Prayer for Dispensing with Pre-Deposit:The appellants sought to dispense with pre-deposit of service tax amounting to Rs. 1,46,22,000 confirmed against them along with penalty and interest. The Tribunal noted the confirmation of service tax against the appellants as recipients of services from foreign merchant bankers. The period in question was 2006-2007, with proceedings initiated in March 2009. The appellants argued against pre-deposit based on Section 66A of the Finance Act, claiming the service provider was an Indian company, thus shifting the tax liability. However, the Tribunal found the issues to be contentious and ruled in favor of a partial pre-deposit.2. Applicability of Section 66A and Liability of Service Recipient:The appellants contended that under Section 66A, if services were provided by a foreign entity to an Indian assessee with an office in India, the tax liability did not lie with the recipient. They argued that the service provider, Citigroup Global Market Ltd., had an Indian registered office. The Revenue countered, highlighting the agreement with the foreign company and lack of evidence supporting the claim that the services were provided by an Indian branch. The Tribunal found the appellants failed to establish a strong case, leading to the directive for partial pre-deposit.3. Contention on Limitation:Regarding the limitation issue, the Revenue pointed out that crucial details about services received and payments made were not disclosed, justifying the extended period invoked by the Revenue. The appellants' failure to rebut these factual findings led the Tribunal to rule against them on the limitation aspect at the prima facie stage.4. Nature of Services Provided by Foreign Company:The Tribunal examined the agreement between the appellants and Citigroup Global Market Ltd., emphasizing that the services were provided by the foreign company, with payments made in foreign currency. The absence of evidence supporting the claim that the services were provided by an Indian company weakened the appellants' case.5. Financial Hardship Plea:The appellants did not plead financial hardship, acknowledging their status as a listed company making profits. Considering this, the Tribunal directed a 50% pre-deposit of the duty demand within six weeks, with the remaining amount of duty and penalty waived upon compliance. The recovery was stayed during the appeal's pendency, with a review scheduled for June 20, 2011.