M/S. Denso Corporation, Japan vs Cce, Coimbatore
- CitationAppeal No. 41/2004-ST dated 29.12.2004 passed by the Commissioner of Central Excise (Appeal
Ratio decidendi
The rule this decision rests on
Service tax under the Finance Act, 1994 cannot be demanded from a foreign service provider for the period before Section 66A was inserted into that Act with effect from 18.4.2006, because the statute then imposed no liability on such a provider; the Tribunal follows the Karnataka High Court's reasoning in the appellant's own case that a foreign company rendering services is not liable to pay service tax under the Act, with the liability shifting to the recipient only through Section 66A.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of Order-in-Appeal No. 41/2004-ST dated 29.12.2004 passed by the Commissioner of Central Excise (Appeals), Coimbatore)
M/s. Denso Corporation, Japan Appellant
Vs.
CCE, Coimbatore Respondent
Appearance
Shri Rahul Jain, Chartered Accountant for the Appellant Shri R. Subramanian, AC (AR) for the Respondent
CORAM
Honble Shri R. Periasami, Technical Member Honble Shri P. K. Choudhary, Judicial Member
Date of Hearing / Decision: 3.9.2015
Final Order No. 41089 / 2015
Per R. Periasami
The appellants have filed this appeal against the order dated 29.12.2004 passed by the Commissioner of Central Excise (Appeals), Coimbatore. The appellant M/s. Denso Corporation, Japan is a foreign service provider for supply of technical information, grant of rights and testing and valuation at Japan. The adjudicating authority confirmed the demand of service tax provided by the overseas service provider i.e. the appellant. The Commissioner (Appeals) in the impugned order reduced the demand and penalty.
2. On perusal of the impugned order and after hearing both sides, we find that case relates to demand of service tax on overseas service provider for the period 19.5.1998 to 15.8.2002 and service tax has been demanded under Consulting Engineering Service. We find that the Honble Karnataka High Court while upholding the order of the Tribunal, dismissed the Revenues appeal in the appellants own case reported as Commissioner of Service Tax, Bangalore Vs. Denso Corporation 2012 (27) STR 10 (Kar.). Paragraph 5 of the said order is reproduced below:-
5.?The substantial question of law that raised in this appeal is as to whether the finding of the Tribunal rejecting the contention of the revenue that the transfer of technology by a foreign company cannot be brought within the ambit of, Consulting Engineer Service, is no longer res integra, in view of the judgment cited by the Tribunal and the judgement of this Court in CEA No. 13/2008 disposed of on 19-4-2011 [2011 (23) S.T.R. J226 (Kar.)]. While considering the similar question, this Court has held that as the service provider is a foreign company, the Finance Act, 1994 is not applicable to him and he is not liable to pay service tax. The said fact has been accepted by the revenue and a Circular dated 30-6-2010 has been passed in that regard and Section 66A was inserted in the Finance Act, 1994, which came into force from 18-4-2006 foisting such liability on the recipient of the service
3. Respectfully following the decision of the Honble High Court of Karnataka, we hold that there is no provision to demand service tax during the period 19.5.1988 to 15.8.2002 on a foreign service provider as Section 66A was inserted to the Finance Act, 1994 only with effect from 18.4.2006. Accordingly, the impugned order is set aside and the appeal is allowed.
(Dictated and pronounced in open court)
(P.K. CHOUDHARY) (R. PERIASAMI) Judicial Member Tehnical Member
Rex
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