Customs, Excise and Gold Tribunal - Delhi
Moser Baer India Ltd. vs Commissioner Of Central Excise on 1 July, 2005
Equivalent citations: 2005(187)ELT123(TRI-DEL), 2006[3]S.T.R.710
ORDER P.S. Bajaj, Member (J)
1. In this appeal which has been preferred against the impugned order-in-appeal, the issue involved is as to whether the appellants as a recipient of the service regarding the installation and commissioning of the machinery imported by them from M/s. STEAG HamaTech AG Ferdinand-von-Steinbeis-Ring, Germany (in short S.H.T.) during the period Dec' 2000 to Dec' 2001, are liable to pay service tax, or not.
2. We have heard both the sides. The Commissioner (Appeals) has levied and confirmed the Service Tax on the appellants on the ground that they are authorised agents of the service provider company S.H.T. Germany in terms of the agreement arrived at between both of them. There is no dispute with the proposition of law that prior to the amendment of Rule 6 of the Service Tax Rules, the liability to pay service tax was on the service provider or his authorised agent, where the service provider was non-resident of India. It is only after the amendment of this Rule, which came into force on 16-8-2000, this liability has been shifted and placed on the recipient of the service. But the case of the appellants is prior to the said amendment of the Rule. Therefore, for the disputed period only S.H.T. company is liable to pay the service tax.
3. Besides this, from the perusal of the agreement copy of which has been placed on the file, entered between the appellants and the company S.H.T - the service provider, it cannot be concluded that the appellants had been appointed as authorised agent by that company during the period in dispute. Ld. Commissioner (Appeals) appears to have drawn inference that the appellants were the agents of the service provider company S.H.T. on the basis of Clauses 3. 2. 4 of the Agreement, but if perusal only reveals that the present appellants were to bear all the expenses relating to the export, internal revenue sales or other taxes, duties, customs etc. and if these charges were borne by the service provider company, then the appellants were liable to reimburse the company. From this clause, it is difficult to conclude that the appellants were appointed as their authorised agents to discharge the service liability on their behalf by the company S.H.T. Therefore, the service tax for the period in dispute could only be legally claimed/recovered from the service provider company S.H.T. or his authorised agents in India and not from the appellants, the recipient of service.
4. In the light of the above discussions, the impugned order is set aside and the appeal of the appellants is allowed with consequential relief as per law.
Order dictated in the open Court.