2014 (1) TMI 1420 - AT - Service Tax

Waiver of pre deposit - Demand of service tax - Reverse charge mechanism - Abatement of 67% under the Notification No. 1/2006 dated 1.03.2006 - Erection Commissioning and Installation - Held that - On perusal of the explanation (1) of Section 66A (2) of the said Act and the Board s clarification it is clear that a person carrying on a business through a branch or agency in any country shall be treated as having a business establishment in that country which would include India. On perusal of the impugned order we find that the foreign company in this case rendered the service of erection commissioning and installation through their agency in India and the identity of such agency had already been mentioned in the impugned order. In our considered view prima facie we find that the foreign company had undertook the erection job through their agency in India and therefore demand of tax under Section 66A is not sustainable. Apart from that we have noticed the erection commissioning and installation charges are part of the invoice price of the printing machinery wherein the applicants paid the customs duty. Hence the applicants have made out a prima facie case for waiver of predeposit of the entire amount of tax including interest and penalty - Stay granted.

Summary

Issues involved:
1. Liability to pay service tax under reverse charge mechanism for erection, commissioning, and installation services provided by foreign companies through sub-contractors in India.
2. Interpretation of Section 66A of the Finance Act, 1994 regarding business establishments through branches or agencies in different countries.
3. Applicability of abatement under Notification No. 1/2006 on the invoice value of imported machinery.
4. Consideration of Board's Circular on service tax liability for services provided from outside India.
5. Assessment of whether the demand of tax under Section 66A is sustainable based on the nature of services and agency relationship.

Detailed Analysis:

1. The applicants imported machineries for manufacturing printed materials and paid customs duty on the invoice value. Show cause notices were issued proposing service tax demand under "Erection, Commissioning and Installation" category. The demand was confirmed by the original authority and upheld by the Commissioner (Appeals), including penalty and interest.

2. The Ld. Advocate argued that the applicants received services through the agency of the foreign supplier with an office in India, citing Section 66A and a Tribunal decision. He highlighted a similar case where the demand was dropped. The Ld. AR contended that the service was provided through sub-contractors, not branches or agencies, supporting the tax demand and abatement under Notification No. 1/2006.

3. The Tribunal examined Section 66A, which treats a person with a business through a branch or agency in any country as having a business establishment there. The Board's Circular clarified the tax liability for services from outside India. The Tribunal found the foreign company provided services through its agency in India, making the tax demand unsustainable. The erection charges were part of the machinery invoice price, justifying a waiver of predeposit of tax, interest, and penalty.

4. The Tribunal allowed the stay petitions, concluding that the demand of tax under Section 66A was not sustainable due to the agency relationship in India and the nature of services provided. Predeposit of tax, interest, and penalty was waived pending appeal disposal.