TMI Blog2010 (2) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... nion of India 2009 -TMI - 32013 - HIGH COURT OF BOMBAY, there was no authority vested by law in revenue to levy service tax on a person who is resident in India. - ST/331 OF 2007 - 453 OF 2010 - Dated:- 21-2-2010 - M.V. RAVINDRAN, JUDICIAL MEMBER AND P. KARTHIKEYAN, TECHNICAL MEMBER G. Shiva Dass for the Appellant. Ms. Joy Kumari Chander for the Respondent. JUDGMENT M.V. Ravindran, Judicial Member. - This appeal is directed against the Orderin-Original No. 31/2007-Commr. LTU, dated 10-4-2008. 2. The issue involved in this case is regarding the service tax liability on the Technical know-how fees and Royalty charges paid by the appellant during the period 10-9-2004 to 31-12-2005 to their group of companies situate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said decision was carried in a SLP by the Revenue to the Hon'ble Apex Court and Apex Court has dismissed the said SLP, which is Union of India v. Indian National Shipowners Association [2010] 24 STT 366. 4. Learned JCDR on the other hand would reiterate the findings of the Adjudicating Authority. 5. We have considered the submissions made at length by both sides and perused the records. The facts involved in this case are not disputed. The appellant is held as liable to pay the service tax as a recipient of the services from foreign country, for services rendered during the period 10-9-2004 to 31-12-2005. The Adjudicating Authority has relied upon the provisions of Service Tax Rules, more specifically on rule 2(1)(d)(iv) of Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Counsel that the issue is now squarely settled by the decision of the Hon'ble High Court of Bombay in the case of Indian National Shipowners Association (supra). We may reproduce the relevant portion of their Lordship's judgment : "Reliance is placed on the provisions of rule 2(1)(d)(iv) quoted above for justifying the levy of service tax for the period from 16-8-2002. Perusal of the above quoted rule 2(d)(iv) shows that by that provision a person liable for paying the service tax was defined to mean in relation to any taxable service provided by a person who is non-resident or is from outside India to a person receiving taxable service in India. Apart from the fact that this rule is contrary to the provisions of section 68 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :— '68(2) Notwithstanding anything contained in sub-section (1), in respect of any taxable service notified by the Central Government in the Official Gazette, the service tax thereon shall be paid by such person and in such manner as may be prescribed at the rate specified in section 66 and all the provisions of this Chapter shall apply to such person as if he is the person liable for paying the service tax in relation to such service.' The above provision authorises the Central Government to notify the taxable service, in relation to which the Rules can be framed, in relation to such service. By the notification dated 31-12-2004, any taxable service provided by a person who is a non-resident or is from outside India is notified. If ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the tax continues to be on the provider of service as per the scheme of the Act, and because of the Explanation also the respondents do not get authority of law to levy a service tax in relation to the services rendered to the vessels and ships of the members of the petitionersassociation outside India. It appears that a similar provision in the Rules was made applicable by the Government in relation to the Clearing Agents by making customers of the Clearing Agent liable for levy of the service tax. That question has been decided by the Supreme Court by its judgment in the case of Laghu Udyog Bharati (supra) and the Supreme Court has clearly laid down that the imposition of the service tax is on the persons rendering the services and by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and therefore, the respondents had no authority to levy service tax on the members of the petitioners-association. In the result, therefore, the petition succeeds and is allowed. Respondents are restrained from levying service tax from the members of the petitionersassociation for the period from 1-3-2002 till 17-4-2006, in relation to the services received by the vessels and ships of the members of the petitioners-association outside India, from persons who are non-residents of India and are from outside India." 7. Aggrieved by the judgment of the Hon'ble High Court of Bombay, revenue preferred Special Leave Petition, in Civil Appeal No. 18932/2009, which was heard, by the Hon'ble Supreme Court and the same was dismissed by passing the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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