TMI Blog2011 (4) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2010 , 1301-1303 of 2010 - - - Dated:- 28-4-2011 - Akil Kureshi and Sonia Gokani, JJ. REPRESENTED BY : Shri Kalpesh N. Shastri, Counsel, for the Appellant. S/Shri Saurabh Soparkar, Sr. Advocate with Paresh M. Dave, for the Respondent. [Order per : Akil Kureshi, J. (Oral)]. These appeals arise out of the common background. Revenue is aggrieved by common judgment of the CESTAT dated 6-11-2009 raising following question for our consideration. Whether the CESTAT, WZB, Ahmedabad is right in holding service tax leviability w.e.f. 18-4-2006 (as held in M/s. Indian National Shipowners Association) when the facts of the present case are different than those of M/s. Indian National Shipowners Association ? Though th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of Delhi High Court in case of Unitech Ltd. v. Commissioner of Service Tax, Delhi, 2009 (15) S.T.R. 385 (Del.). The Tribunal came to the conclusion that in view of the above mentioned decisions of two High Courts, the assessee was not liable to pay any service tax for period prior to 18-4-2006, the date with effect from which Section 66A was introduced in the Finance Act, 1994. 4. Counsel for the appellant-department submitted that the facts in the case of Indian National Shipowners Association (supra) and in case of Unitech Ltd. (supra) were different. He submitted that Bombay High Court decision was based on the facts where even the service was not received in India; whereas in the present case, the management consultant servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he clients as the assessee is in conflict with Sections 65 and 66 of the Finance Act, 1994. 10. Having thus heard learned Counsel for the parties and having perused orders on record, we find that undisputedly with effect from 18-4-2006 Section 66A has been introduced in Finance Act, 1994 which reads as under : 66A. (1) Where any service specified in clause (105) of section 54 is, - (a) provided or to be provided by a person who has established a business or has a fixed establishment from which the service is provided or to be provided or has his permanent address or usual place of residence, in a country other than India, and (b) received by a person (hereinafter referred to as the recipient) who has his place of business, fixe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under : (iv) in relation to any taxable service provided or to be provided by a person, who has established a business or has a fixed establishment from which the service is provided or to be provided, or has his permanent address or usual place of residence, in a country other than India, and such service provider does not have any office in India, the person who receives such service and has his place of business, fixed establishment, permanent address or, as the case may he, usual place of residence, in India; 13. This Rule for the period prior to 18-4-2006 and; in particular in absence of Section 66A of the Finance Act, 1994 came up for consideration before the Bombay High Court in case of Indian National Shipowners Associati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rue that in the concluding portion, the Bench observed that the person who receives service outside India from a person who is non-resident cannot be made to pay service tax. To our mind, however, this is not the ratio of the decision and the entire decision is based on the ratio laid down by the Apex Court in the case of Laghu Udyog Bharti (supra). 15. Bombay High Court s observations relevant for our purpose may be noted thus : 20. 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 Lagu Udyog Bharati (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vices is deemed to be a service provider. Before enactment of Section 66A, there was no such provision in the Act and therefore, the Respondents had no authority to levy service tax on the members of the petitioners-association. 16. We also notice that Delhi High Court in case of Unitech Ltd. (supra) relying on decision of the Bombay High Court in the case of Indian National Shipowners Association (supra), deleted the tax demand from assessee who was a recipient of taxable services in the nature of architectural services from a non-resident. 17. In view of the above judicial pronouncement and in view of the facts on record, we do not find that the Tribunal committed any error in setting aside the service tax demand. When we find that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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