9911796707
TMI Blog2008 (6) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... firmed and penalties were imposed on the Appellant vide the impugned order on the grounds that - (i) from the Appellant's balance sheets for the financial years 2002-03, 2003-04 and 2004-05, it was found that during this period a total amount of Rs. 31,36,47,147/- had been paid in foreign currency to Global Cricket Corporation PTE. Ltd. (GCC) - World Sports Nimbus PTE. Ltd. - Quintus Events Ltd. and Carat Australia Media Services PTE Ltd. for services provided by them to the Appellants which were classifiable as "advertising agency service" and total amount of Rs. 55,76,50,782/- in foreign currency had been paid to M/s. DND, Korea for services provided by them to the Appellants, which were classifiable as Engineering Consultancy Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame a taxable services only w.e.f. 1-5-06 by insertion of sub-clause (zzzm) in Section 65(105) of the Finance Act, 2006 and when a subsequent entry is enacted covering an activity, without changing an existing entry, it is a presumption that the earlier entry did not cover such activity. (2) As regards the demand of service tax under Consulting Engineer Services, the amount paid by the Appellant to M/s. DND, Korea is not liable to service tax as it was for transfer of technical knowhow. (3) In this case, it is an undisputed fact that the alleged services have been wholly rendered from outside India, during period prior to insertion of Section 66A w.e.f. 18-4-06. Therefore, in view of this Hon'ble Tribunal's decisions in the case of Foste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(1)(d)(iv). 3. We have considered the rival submissions. In this case, there are three issues involved. (a) Were the total payments of Rs. 31,36,47,147/- made by the Appellants during 2002-03, 2003-04 and 2004-05 to GCC, World Sports Nimbus PTE Ltd., Quintus Events Ltd. & Carat Australia Media Services PTE Ltd. for "Advertising Agency services" as defined in Section 65 of the Finance Act, 1994? (b)Were the total payment of Rs. 55,76,50,782/- made by the Appellants during the above mentioned period to M/s. DND, Korea for "Consulting Engineers services" as defined in Section 65 of the Finance Act, 1994? (c) Are the Appellants, as the service receivers in India liable to pay service tax on the above mentioned alleged taxable services in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shment or usual place of residence in India from off shore taxable at the end of the service receiver in India. 5.1 By Finance Act, 2005, an explanation was added w.e.f. 16-6-05 to Clause 105 of Section 65 clarifying that - "For the removal of doubts, it is hereby declared that where any service provided or to be provided by a person, who has established a business or have 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 is received or to be received by a person who has his place of business, fixed establishment, permanent address or, as the case may be, usual place of residence, in India, such service shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal in its order dt. 25-1-08 the cases of Lohia Starlinger v. CCE, Kanpur (service tax stay application No. 1685/07 in Appeal No. 384/07) [2008 (10) S.T.R. 483 (Tri.-Del.)] holding that prior to enactment of Section 66A of Finance Act, 1994, there was no such liability to pay service tax on the recipient of service and that Rule 2(1)(d)(iv) of Service Tax Rules, 1994, being a definition clause, cannot be understood as a substantive provision of a statute. 6. Since in this case there is no dispute about the fact that the alleged taxable services had been provided by the non-resident foreign service provider from off shore and those services have been provided during 2002-03, 2003-04 and 2004-05 i.e. during period prior to 18-4-06, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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