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2020 (7) TMI 588 - AT - Service TaxServices received from outside India - POPOS Rules - reverse charge mechanism - chartering out of vessels - agency commission, disbursed in India and remitted outside India - various reimbursements - reimbursement to out chartering agents, being payment to agents for handling port charges outside India - reimbursement of deputation expenditure - reimbursement as sales promotion expenditure - reimbursement as expenditure on maintenance and repair - reimbursement towards expenditure on consulting engineers and training - section 66A of Finance Act, 1994. Whether rendering of such service outside India, even if it is for the benefit of the entity in India, amounts to provision of the service in India? - HELD THAT:- The peculiar characteristic of invisibility, and intangibility of the taxable event compounded by the near impossibility of segregating the taxable element in a bundled transaction, mandates rigorous rules of engagement to comply with constitutional requirement of limiting the levy within the authority of law. Hard enough as that is, the taxation of services rendered from outside India by the legal fiction of deeming the recipient as provider cannot be founded on money transaction. The scheme of taxation of services in Finance Act, 1994 does not envisage transfer of money to be a service as evidence of such rendering. The taxation of services procured from abroad, if such was the legislative intent, would have been a simple enactment without the need of either the deeming fiction or the elaborate Rules for determination of the destination of service. It is trite to assert that the compelling reason for taxation of services rendered from abroad in the hands of the recipient was two-fold: that businesses in India should not be permitted to indulge in arbitrage owing to escapement from tax on services in which the provider is beyond jurisdiction and that the chain of value-added is not broken. Hence, the receipt of services in India for furtherance of business and commerce are co-terminus parameters for taxation. The convenience of classification as ‘business auxiliary service’, to bring the activities within the residual grouping of rule 3(iii) of Taxation of Services (Provided from Outside India and Received in India) Rules, 2006, merely from ‘commission’ having been paid, does not pass muster in view of competing and more specific descriptions in section 65(105) of Finance Act, 1994. In the field of maritime commerce, the activity of vessel handling in ports is entrusted to ‘steamer agents’ and of goods to ‘customs brokers’; undoubtedly, these are agents but if legislative intent was to tax them as providers of ‘business auxiliary service’, there would be no need to have these separate descriptions in the enumeration of ‘taxable service’ and it cannot be the case of the tax authorities that these varieties of agencies are peculiar to India. Logically, when such services are provided by agencies outside India these cannot be provided within India and it is for such reason that taxable services described in section 65 (105) (h) and section 65 (105) (i) of Finance Act, 1994 are within the ambit of section 66A of Finance Act, 1994 only to the extent of having been performed in India. Therefore, the commission or agency fee remitted to entities for handling of vessels outside India are exempt from taxation. Extende dperiod of limitation - penalty - CENVAT Credit - HELD THAT:- The Tribunal has, in JET AIRWAYS (I) LTD. VERSUS COMMISSIONER OF SERVICE TAX MUMBAI [2016 (8) TMI 989 - CESTAT MUMBAI], held that the revenue neutrality of CENVAT credit in procurement of services from outside the country blunted the scope for alleging the existence of ingredients that permit the invoking of the extended period of limitation as well as penalty under section 78 of Finance Act, 1994 - Indeed, but for the proceedings initiated in relation to the demands that we have, supra, set aside, the absence of these very ingredients, coupled the promptitude with which the liability had been discharged, the option of initiation of proceedings, would therefore close the option of initiating proceedings nearly for imposition of penalty - Penalties u/s 78 set aside. Appeal disposed off.
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