Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2018 (12) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (12) TMI 1753 - AT - Service TaxBusiness auxiliary service - export of services - It was the contention of the respondent herein that, the commission, having been received from outside India and in convertible foreign exchange, was for rendering service to entities outside the country the exemption in Export of Service Rules, 2005 would apply - HELD THAT:- It is common ground that the activity of the respondent herein is within the ambit of ‘business auxiliary service’ taxable under section 65(105)(zb) of Finance Act, 1994; the dispute merely pertains to whether the said transactions are exempted as exports. Intuitively, there can be no doubt that an activity for which consideration is received by an entity from outside India in convertible foreign exchange is nothing but export and, hence, not liable to tax. However, it is the contention of Revenue that after the grouping of the various taxable services according to location of the immovable property, location of performance and location of recipient, rule 3(2) of Export of Service Rules, 2005 thereof mandates not only receipts of consideration in foreign exchange but also a two-fold condition of the service having been provided from India and used outside India. Interpretation of rule 3(2) of Export of Service Rules, 2005 - HELD THAT:- The issue stands settled by the decision of the Hon’ble High Court of Bombay in COMMISSIONER OF SERVICE TAX, MUMBAI-III VERSUS M/S. SGS INDIA PVT. LTD. [2014 (5) TMI 105 - BOMBAY HIGH COURT] and an identical view taken by the majority in the dispute of M/S. MICROSOFT CORPORATION (I) (P) LTD. VERSUS CST. NEW DELHI. [2014 (10) TMI 200 - CESTAT NEW DELHI (LB)] where it was held that The Export of Service Rules, 2005, being destination based consumption tax are in accordance with the declaration of law by the Hon’ble Supreme Court. Having held that services involved were export of services, the same are not liable to be sustained against the appellants. This matter was listed for clarification after conclusion of hearing on 2nd May 2018 on which day the decision on this appeal was pronounced for the limited purpose of ascertaining whether the amount demanded pertains to the period prior to amendment of rule 3(2) of Export of Service Rules, 2005 and difference on the appeal filed by Revenue - While the former was affirmed, we are constrained to take note that the appeal of Revenue has been filed without including the decisions that were pivotal for the reviewing authority to come to a conclusion that the impugned order must be challenged, while forbearing to elaborate on this lapse, departmental authorities are advised to be more cautious in future. Appeal dismissed - decided against Revenue.
|