2009 (4) TMI 109 - AT - Service Tax

Tribunal rules service tax liability for non-residents in India starts from 2006

SHARADHA TERRY PRODUCTS LTD. Versus CCE, SALEM

The tribunal ruled in favor of the appellants, determining that the liability to pay service tax for services rendered outside India by a non-resident ... Service Tax on Import of Service – Effective Date - According to the Revenue, the appellants are liable to pay service tax with effect from 01.01.2005, while according to the assessees, the date from which they would be required to discharge service tax liability is 18.04.2006 which is the date on which Section 66A of Chapter V of the Finance Act, 1994 was enacted – held that prior to the enactment of Section 66A, there was no authority vested by law on the respondents to levy service tax on a person who is resident in India but who receives services outside India – demand set aside. Issues: Determination of the date from which the recipient of services rendered outside India by a service provider is liable to pay service tax.Analysis:1. The common issue in both cases before the tribunal was the liability of the appellants to pay service tax concerning services rendered outside India by a service provider. The Revenue claimed the tax should be paid from 01.01.2005, while the assessees argued it should be from 18.04.2006 when Section 66A of the Finance Act, 1994 was enacted. The tribunal considered a recent decision by the Bombay High Court in Indian National Shipowners Association case, which highlighted the lack of legal authority to levy service tax on a person in India receiving services outside India before the enactment of Section 66A.2. The Bombay High Court's decision emphasized that prior to the enactment of Section 66A, there was no legal basis for imposing service tax on individuals in India receiving services from non-residents outside the country. The court analyzed various notifications and provisions to conclude that the recipient of services cannot be held liable for service tax, as the Act primarily focuses on taxing the service provider. The court clarified that even though services provided by non-residents outside India to Indian residents are taxable, the tax liability remains with the service provider.3. The tribunal noted that the services in the present case were rendered outside India, making the judgment of the Rajasthan High Court in Union of India Vs. Aditya Cement, which held the service recipient in India liable from 01.01.2005, inapplicable. Despite the argument to refer the issue to a larger bench, the tribunal relied on the Bombay High Court decision as it settled the matter, and no contradictory decision was presented. Consequently, the tribunal set aside the impugned orders and allowed the appeals, following the precedent established by the Bombay High Court.This detailed analysis of the judgment showcases the interpretation and application of legal provisions and court decisions in determining the liability for service tax concerning services rendered outside India by a non-resident service provider to individuals in India.