Export of Services - Whether mere receipt is convertible foreign exchange is sufficient to hold that service has been exported and not liable to service tax? - Part 2 (Decision of High Court)

In the matter of M/s MICROSOFT CORPN. (I) (P) LTD. Versus COMMR. OF SERVICE TAX, NEW DELHI reported in 2009 -TMI - 34778 - CESTAT, NEW DELHI, while deciding the stay application, honorable tribunal observed that:

Prima facie, the appellant has not brought out its case for total waiver of pre-deposit during pendancy of appeal

Demand was raised for Rs. 126,26,10,497/- plus cess + plus penalty + interst

Pre-deposit ordered was Rs. 70 crorers.

See Part 1 for detailed commentary

Assessee has challenged the order of CESTAT before the High Court.

The case of the petitioner is that commission received by the petitioner under the agreement is not liable to service tax on the ground that the same is export of service, which is exempt from payment of cess tax. On this stay application, the Tribunal has passed impugned order dated 31.7.2009 directing the petitioner to make pre-deposit of Rs.70 crores and realization of balance demand is settled till the disposal of the appeal. The petitioner is not satisfied with this conditional stay as it wants complete waiver of the condition of pre-deposit. Therefore, challenging that order the present petition is filed.

Decision of the High Court

M/s MICROSOFT CORPN. (I) (P) LTD. Versus COMMR. OF SERVICE TAX, NEW DELHI [2009 -TMI - 34883 - DELHI HIGH COURT]

(A detailed and reasoned order)

15. We are afraid, the petitioner cannot pitch its case to that level as there are various thronging issues which are settled and cobwebs cleared. As per the respondents, in view of their submissions taken note of above, the case at hand is not that of plain and simple import of goods. The agreement makes it clear that MS provides services to the petitioner and the petitioner provides services to MS. The consumers are based in India, both destination and consumption is in India. Indian consumers pay for services which go out to the owners, namely, the Holding Company and part of it comes back to India in the shape of commission. Economic and commercial activities also take place in India. On the basis of these features, it is the argument of the respondent that entire performance is existed and becomes extinct in India. It is not the province of this Court, in these proceedings, to finally pronounce on these aspects and once we take the view that both sides have arguable case and final determination of these issues is to be done in the first instance by the Tribunal only, it would not be even wise to venture into that exercise. Insofar as the Tribunal is concerned, it has kept in mind all necessary parameters which are required to be gone into for deciding such applications for stay/waiver of pre-deposit and has passed an equitable order.

16. In exercise of our jurisdiction under Article 226 of the Constitution, we feel that it is not a fit case where one should interfere with the said order. This writ petition is, accordingly, dismissed. However, we grant four weeks time to the petitioner to make deposit of the amount as directed by the Tribunal for compliance. The parties shall appear before the Tribunal on 1st December 2009.

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M/s MICROSOFT CORPN. (I) (P) LTD. Versus COMMR. OF SERVICE TAX, NEW DELHI [2009 -TMI - 34883 - DELHI HIGH COURT]