2017 (7) TMI 343 - AT - Service Tax

Appellant wins appeal on tax demands for overseas services, deemed export services beyond taxing jurisdiction.

M/s APM Terminals India Pvt Ltd Versus CCE, Raigad

The Tribunal ruled in favor of the appellant, setting aside the tax demands and penalties imposed for services provided to an overseas client, determining ... Business Auxiliary Services - Export of services - short levy of tax - Held that: - The notices have sought classification of the service under section 65(105)(zzb) of Finance Act, 1994 which is covered by rule 3(iii) of Export of Service Rules, 2005 and hence, under section 93 of Finance Act, 1994, is exempted from levy if recipient of service is located outside India - The consideration received from or on behalf the overseas client is, consequently, beyond the pale of taxing jurisdiction under Finance Act, 1994 and the demand in the impugned orders must, necessarily, be set aside - penalties also set aside - Appeal allowed - decided in favor of appellant. Issues:1. Taxability of services provided by the appellant to M/s AP Moller-Maersk A/s under 'business auxiliary service' as per section 65(105)(zzb) of Finance Act, 1994.2. Invocation of the proviso to section 73(1) of Finance Act, 1994 for extending the period of demand and imposing penalties under section 78.3. Tax liability of the appellant as a provider of 'repair and maintenance service' under section 65(105)(zzg) of Finance Act, 1994.4. Classification of service under section 65(105)(zzb) of Finance Act, 1994 and its exemption under rule 3(iii) of Export of Service Rules, 2005.Detailed Analysis:1. The appellant, engaged by M/s AP Moller-Maersk A/s to outfit containers for garment transportation, faced tax demands for 'business auxiliary service' under section 65(105)(zzb) of Finance Act, 1994. The original authority upheld the demands, considering the activity as 'producing or processing goods for, or on behalf of, client,' falling under 'business auxiliary service.' However, the Tribunal found the service not taxable as it was considered an export service beyond the taxing jurisdiction, leading to setting aside of demands and penalties.2. The invocation of the proviso to section 73(1) of Finance Act, 1994 for extending the demand period and imposing penalties was challenged by the appellant. Citing legal precedents, the Tribunal ruled that successive demand notices cannot presume suppression of facts, setting aside the demand related to the extended period in the show cause notice dated 16th October 2012.3. The appellant's tax liability as a provider of 'repair and maintenance service' under section 65(105)(zzg) of Finance Act, 1994 was disputed by tax authorities due to disagreement on tax computation. The demands were confirmed based on the activity being excluded from the definition of manufacture under Central Excise Act, 1944, and liable as 'business auxiliary service' under section 65(19) of Finance Act, 1994. Penalties were imposed under sections 76, 77, and 78, which were set aside upon appeal.4. The classification of the service under section 65(105)(zzb) of Finance Act, 1994, and its exemption under rule 3(iii) of Export of Service Rules, 2005 were crucial issues. The Tribunal clarified that the service provided to an overseas client falls outside the taxing jurisdiction, exempting it from levy under section 93 of Finance Act, 1994. The demands were set aside, emphasizing that the activity being an export service was not taxable under the Act.In conclusion, the Tribunal ruled in favor of the appellant, setting aside the demands and penalties, highlighting the exemption of the service provided to an overseas client from the purview of taxation under the Finance Act, 1994.