JCB INDIA LIMITED Vs. COMMISSIONER OF SERVICE TAX

JUDGEMENT

(1.) THIS appeal by the assessee is directed against the order -in -original of the Commissioner, Sales Tax Delhi dated 02.06.2006. The dispute relates to service tax. The appellant is recipient of consulting engineer service from abroad. The period under dispute is March 2004 to July 2004.

(2.) A Larger Bench of the Tribunal has held in the case of Hindustan Zinc Limited v. CCE, Jaipur Service Tax Appeal No. 523 of 2006 decided on 27.06.2008 that recipient of consulting engineer service from outside India is not liable to pay service tax prior to 01.01.2005. It would, thus, appear that dispute which relates to the period prior to 01.01.2005 is covered by the said decision of the Larger Bench.

(3.) WE have perused the judgments of the Kerala High Court and the Supreme Court. It is true that in the question of law framed by the High Court, reference was made to the period both prior to 16.08.2002 and subsequent, but on perusal entire judgment it is clear that the sum and substance of the dispute was the liability of the service recipient. The point canvassed was whether in view of the specific terms of the agreement the service recipient was liable to pay service tax or not. The point was answered against the service recipient. With due respect, we are not able to appreciate as to how tax liability which is creature of statute and governed by statutory provisions can be determined or apportioned on the basis of terms of the agreement between two private parties. Be that as it may, the point for consideration in the Supreme Court was whether the service recipient was also liable to pay interest on the service tax. There is nothing in the judgment to suggest that the question as to whether service recipient was liable to pay service tax prior to 01.01.2005, was gone into.