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2014 (9) TMI 779 - AT - Service TaxWaiver of pre deposit - Import of services - service to self - IT enabled services - Support Services for Business and Commerce - Business Auxiliary Service - Held that:- Where the service provider has no permanent establishment in India or he has no branch providing service in India but the service is received in India, tax would be paid by the receiver. Naturally what this means is that the service provider should not be having an establishment in India and then only this provision is attracted. In this case, the service provider is the branch and it cannot be said that overseas branch does not have an establishment in India assuming that it is providing the service classifiable under SSBC. This is because the branch has an establishment in India in the form of their Head Office and abroad as a permanent establishment in that country - When service is provided by a company which has a permanent establishment in India or when the service is provided by a person who has an establishment in India, provision of Section 66A do not get attracted. In this case, if it is assumed that the branch has provided SSBC, service tax demand has to be made on their establishment in India which is nothing but the assessee himself. it is nothing but a self-service and therefore a service to self is not taxable also is valid. Further, the amount received by the appellant as a result of services rendered by the branches abroad for the appellant would be more than what they have paid to the branches, in which case, it will be a negative consideration for the service rendered by the branch to the principal. This is another complexity that gets created because of the stand taken by the Revenue that payment of salaries and other expenses of branches by the appellant is in return for consideration received. In the absence of actual earnings that arise because of the branches and its analysis by either side, no conclusion can be clearly laid down and the fact remains that this is a complexity that should not arise in a case of tax transaction like service tax. If service has been rendered and there is no consideration is determined, how can we say entire amount incurred as expenses is consideration, in the absence any enquiry or a question about the income earned and the nature thereof. Prima facie conclusion goes in favour of the assessee on this issue at this juncture - Stay granted.
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