2006 (1) TMI 52

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....(16.08.2002) in Commissioner (Appeals)'s order dated 28.04.2005 which has confirmed the liability of service 2. On 16.08.2002, Service Tax Rules  1994 underwent certain far-reaching amendments.  A new clause (iv) came to occupy in  the Service Tax Rules 1994 in Clause (d) Sub rule 1 of Rule 2 :- "(iv) In relation to any taxable service provided by a person who is a non resident or he is from outside India, does not have any office in India, the person receiving taxable service in India". This charge heralded a novel concept in fiscal procedures by shifting the conventional burden of tax liability from  the shoulders of a (foreign) service-provider to  the (local) service recipient. 3. The show cause noti....

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....; He observed: "Under the provisions of the Service Tax Rules 1994, they are liable to pay the duty at Noida where they have a centralized accounting system.  Commissioner Noida may like to look into this aspect if he so deems fit, for which a copy of this order is being endorsed to him". 4. The main reason for deciding that the appellants were liable to pay service tax during the period prior to amendment was drawn by the Commissioner (Appeals) from the agreement entered into by them, where "a clearcut onus" was cast on them that they shall bear all taxes and levies of any kind as may be levied in India in respect of the agreement.  These provisions were equated with an "authorization" made by their foreign collaborator. ....

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.... proviso would make it clear that there is no binding absolutely on the service recipient to act on behalf of his foreign service provider unless authorised by the latter. Though the Commissioner (Appeals) has held that certain clauses in the agreement can be treated as an authorization and thereby burdening the appellant on the tax liability of his service provider, we do not see eye to eye with such an interpretation.  No explicit direction or authorization for payment of service tax strictly in terms of the proviso (2) to Rule 6 of Service Tax Rules on behalf of the service provider is forthcoming in the said agreement. In other words, the agreement, as contended by the appellants, would not related to those taxes that would be appl....