2010 (5) TMI 433 - AT - Service Tax

Waiver of pre-deposit - Application of stay - Business Auxiliary Services and Market Research Services - export of Business Auxiliary Service by the assessee was at issue and it was prima facie held that such export would be exempted from Service tax even after rescission of Notification No. 6/99-S.T. - appellant during the material period was engaged in the activity of analyzing market research reports coming from abroad - They were expected to get themselves registered with the department inasmuch as it is not their case that they were committed to the above activity only for the purpose of export - They were expected to get themselves registered with the department inasmuch as it is not their case that they were committed to the above activity only for the purpose of export. Prima facie till August 2003 the appellant suppressed material facts before the department and therefore the larger period of limitation was invoked rightly for demand of Service tax on Market Research Services from the appellant - Decided in favour of the assessee

Summary

Issues involved:
Waiver of pre-deposit and stay of recovery in respect of Service Tax demand for the period 1-3-03 to 31-1-05, penalties imposed on the appellant, applicability of Notification No. 21/03-S.T., demand of Service Tax on 'Business Auxiliary Services' and 'Market Research Services', invocation of extended period of limitation, burden of proof, interpretation of export of services, time-bar against the demand of Service tax.

Analysis:

1. The appellant sought waiver of pre-deposit and stay of recovery for a Service Tax demand of over Rs. 17.3 crores for the period 1-3-03 to 31-1-05, along with penalties imposed. The demand was primarily under 'Business Auxiliary Services' and 'Market Research Services'. The Commissioner passed the impugned order based on a show-cause notice invoking the extended period of limitation under Sec. 73(2) of the Finance Act, 1994.

2. The appellant was engaged in providing back office support services to overseas clients through related companies. The appellant's relationship with WNS North America and WNSU.K. involved commission payments and foreign exchange transactions. The appellant was not registered for 'Market Research Services' or 'Business Auxiliary Services' during the disputed period. The demand was raised based on the view that the appellant was liable to pay Service Tax on exported services.

3. The appellant argued that export of services was not intended to be taxed, citing Finance Minister's Budget Speech 2003-04 and international VAT/GST guidelines. They relied on legal precedents emphasizing that Service Tax is consumption-based and should apply only where the consumer is within India. The appellant also challenged the factual basis of the demand, claiming no repatriation of foreign exchange.

4. The appellant questioned the factual basis of the demand, arguing against the repatriation allegations. They highlighted statements denying repatriation and challenged the invocation of the proviso to the Notification No. 21/03-S.T. The plea of time-bar against the Service Tax demand was also raised.

5. The Revenue argued that export of services was taxable before 2005 and exemptions were granted through Notifications. They contended that the burden of proof lay with the appellant to establish compliance with exemption conditions. The Revenue contested the plea of time-bar and asserted the liability of Service Tax on 'Market Research Services'.

6. The Tribunal considered the arguments and legal precedents. It ruled in favor of the appellant regarding 'Business Auxiliary Services', granting waiver of pre-deposit and stay of recovery. However, for 'Market Research Services', the Tribunal found the demand valid, requiring a deposit of Rs. 35 lakhs within a specified period.

7. The Tribunal found the appellant's challenge on 'Market Research Services' unconvincing, considering the nature of their activities. The Tribunal upheld the demand for Service Tax on these services and required the specified deposit. Financial hardships were not pleaded by the appellant.

This detailed analysis covers the issues involved in the legal judgment, providing a comprehensive understanding of the arguments presented and the Tribunal's decision on each aspect of the case.