AIR INDIA LTD. Vs. COMMISSIONER OF SERVICE TAX

JUDGEMENT

(1.)

(2.) THE facts giving rise to this appeal and stay application, in brief, are as under: -

(3.) SHRI Govind Dixit, ld. Departmental Representative, opposed the stay application by reiterating the findings of the Commissioner in the impugned order and pleaded that the services of repair and maintenance of aircraft engines and components are taxable under Section 65(105)(zzg) read with Section 65(64) of the Finance Act, 1994 and since the same have been provided by the offshore service provider and have been received by the appellant in India, the appellant as service recipient would be liable to pay service on the same in terms of Section 66A of Finance Act, 1994 read with Rule 2(1)(d)(iv) of the Service Tax Rules, 1994, that there is no merit in the appellant's contention that the service was provided wholly outside India, as in terms of the appellant's agreement with the foreign service providers, the foreign service providers were also under obligation to provide the service in India, that as regards the service received from GSAs, from the appellant's agreements with them, it is clear that the General Sales Agent were to represent the appellant in the region assigned to them and in that region, they were required to promote the business of the appellant and also provide various services on their behalf, that thus the nature of the activities of the GSAs is squarely covered by the definition of business auxiliary service as defined under Section 65(19) of the, Finance Act, 1994 and since this service has been received by the appellant based in India and has been used in relation to their business, the appellant as service recipient would be liable to pay service tax in respect of the same, that the appellant had suppressed the relevant facts from the department and, therefore, longer limitation period under proviso to Section 73(1) has been correctly invoked and penalty on them under Section 78 has been correctly invoked, that the department has strong prima facie case against the appellant and, that, therefore, conditions have to be imposed for safeguarding the interest of the Revenue while considering the appellant's plea for waiver from the requirement of pre -deposit. He, therefore, pleaded that this is not the case for total un -conditional waiver from the requirement of pre -deposit. He also pleaded that financial hardship cannot be the reason for waiver from the requirement of pre -deposit.