TMI Blog2024 (1) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... oaching or Training Services - subscription paid to institution located outside India - HELD THAT:- It is not in dispute that the services in question are performed outside India as evident from Para 34.6 of the Impugned order whereas in terms of Rule 3(ii) of the Taxation of Services (Provided from outside India and Received in India) Rules, 2006, receipt of such services shall qualify as import only if the services are performed in India. In the present case, we find that the subscription fee paid to institutes i.e. foreign service providers, were for coaching and training performed completely outside India and therefore, no tax is payable under reverse charge mechanism - the demand on this service also set aside. Convention Centre Service - HELD THAT:- It is found that the entire demand in respect of Convention Centre Services pertains to the period prior to 18.04.2006 hence no service tax can be demanded for the period prior to 18.04.2006 as Section 66A was introduced only w.e.f. 18.04.2006 - it is also found that as per Rule 3(ii) of the Import Rules, receipt of convention services shall qualify as import only if the services are performed in India and therefore, it cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eting support services received from foreign service provider under Business Auxiliary Services 'BAS'. Commission paid to foreign service provider for market support under BAS. Convention services under 'convention centre service'. Subscription paid to institutions based outside India under 'commercial training or coaching service'. Software upgradation and its maintenance from foreign based service providers on software installed in system in India under 'Management, Maintenance or Repair Service'. 2.2 The appellant filed reply to the show cause notice dated 17.04.2009. 2.3 After following due process, the Adjudicating Authority vide the impugned order has confirmed the demand of service tax on the appellant from period on and after 01.01.2005 to 31.02.2008 and dropped the demand of service tax prior to 01.01.2005 as shown in the table below:- Nature of Service Demand dropped Demand upheld in OIO (01.01.2005 to 31.03.2008) Marketing support services received from foreign service provider under Business Auxiliary Services 'BAS' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l as in the impugned order, no specific clause of Section 65(19) was mentioned by the Adjudicating Authority while confirming the demand on the Appellant. She further submits that it is a settled principle that demand cannot be sustained without specific mention of the clause under which the demand is confirmed on the assessee. For this submission, she relied upon the following decisions: Joshi Auto Zone Pvt. Ltd. vs. Commissioner of Service Tax, Chandigarh 2023 (12) TMI 1069- CESTAT CHANDIGARH HSBC Investdirect (India) Ltd. Versus Commissioner of Service Tax, Mumbai 2014 (8) TMI 582-CESTAT MUMBAI Syniverse Mobile Solutions Pvt Ltd., (Earlier Transcibernet India Pvt Ltd.) vs Commissioner of Customs, Central Excise Service Tax, Hyderabad -IV Service Tax Appeal No. 1319 of 2010, order dated 31.05.2023 Balaji Enterprises vs Commissioner of Central Excise and Service Tax, Jaipur-1 2020 (33) G.S.T.L. 97 (Tri. - Del.) United Telecoms Ltd. vs Commissioner of Service Tax, Hyderabad 2011 (22) S.T.R. 571 (Tri. - Bang.) Palecha Trade Services Pvt. Ltd vs. Union of India through, Commissioner of Central Excise, Jaipur-I 2018 (14) G.S.T.L. 351 (Raj.) Fulchand Tikamchand v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view of the settled position of law that the impugned order to the extent it confirms the demand under the head of Business Auxiliary Service, is liable to be set-aside. 4.9 As regards, the Commercial Coaching and Training Services, the Ld. Counsel submits that the impugned order has confirmed the demand on receipt of coaching and training service in respect of subscription paid to institution located outside India. She further submits that it is not disputed that the services in question are performed outside India and in terms of Rule 3(ii) of The Taxation of Services (Provided from Outside India and Received in India) Rules, 2006 ('Import Rules'), receipt of such services shall qualify as import only if the services are performed in India. For this submission, she relied upon the following case laws: Firmenich Aromatics India Pvt Ltd. 2018 (10) TMI 655-CESTAT-AHD ABB Ltd. v. Commissioner - 2019 (24) G.S.T.L. 55 (Tri-Bang.) CCE v. Maersk India Pvt. Ltd. 2015 (40) STR 1059 (Born.) She further submits that the demand in respect of period prior to 18.04.2006 is liable to be set aside for the reason that Section 66A of the Finance Act was introduced from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 (3) TMI 402 - CESTAT MUMBAI 4.14 As regards, the invocation of extended period of limitation is concerned, she submits that for invoking the extended period, the Department is required to establish fraud, collusion, wilful misstatement or suppression of facts or contravention of any of the provisions of this Act or Rules with an intent to evade the payment of tax. She further submits that the Adjudicating Authority has clearly failed to establish any of these ingredients on the part of the Appellant. She further submits that the entire transaction was revenue neutral, as the Appellant would be entitled to take the credit of the service tax paid under reverse charge and therefore, the mala fide intention cannot be alleged in such transactions and extended period cannot be invoked. 4.15 She further submits that when the demand itself is not sustainable, the demand of interest and penalty also not sustainable. 5. On the other hand, the Learned Authorized Representative reiterated the findings in the impugned order. 6. We have heard the Ld. Counsel for the appellant and perused the material on record and also the decisions relied upon by both the parties, first, we take u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received from outside India is leviable to tax w.e.f. 18.04.2006. 6.2 Further, we find that neither in the show cause notice nor in the impugned order, any specific clause of Section 65(19) was mentioned by the Adjudicating Authority while confirming the demand on the appellant. This issue has been considered by various benches of the Tribunal and it has been consistently held by the Tribunal that the demand cannot sustain without specific mention of the clause under which demand is confirmed on the assessee. In this regard, we may refer to the decision of this Tribunal in the case of Joshi Auto Zone Pvt. Ltd. cited (supra) wherein the Tribunal has considered this issue and the relevant findings of the Tribunal are reproduced herein below:- 9. After considering the submissions of both the parties and perusal of material on record, we find that neither in the show cause notices, nor in the impugned order, the Ld. Commissioner has mentioned any specific clause of Section 65 (19) of Business Auxiliary Service (BAS) under which service tax demand is sought to be made. We also find that the Tribunal has consistently taken the view in the decisions cited (supra) that specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Appeals) observed that the Original Authority himself was not clear under which category of service the activity of the appellants was liable Service tax. The Commissioner (Appeals) reproduced Section 65A(2), the statutory provision for classification of a taxable service prima facie classifiable under two or more sub-clauses of Clause 105 of Section 65 and observed as follows:- The lower authority has obviously not followed principles detailed supra and clearly erred in holding that the services rendered by the appellants are classifiable under both Business Auxiliary Service as well as Business Support Service . Having reproduced the findings of the Commissioner in the impugned order and having observed that I am in agreement with the aforesaid findings of the Commissioner , there was no need to come to such a weird conclusion of classifying the service under more than one head. [emphasis supplied] In the recent decision of CESTAT, Delhi in the case of Balaji Enterprises Vs CCE and ST, Jaipur [2020(33) GSTL 97 (Tri-Del)] the Bench has considered in the case of Collector Vs Pradyumna Steel Ltd., [1996 (18) ELT 441 (SC)] which is cited by the Learned AR in that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been demanded was under taken abroad. The services under Section 65 (105) (zzc) fall under Rule 3(2) of the Taxation of Service (provided from outside India and received in India) Rules, 2006. The services covered under the said sub-Rule is taxable only when the same are performed in India. In the instance case, it is not in dispute that the said service was performed outside of India. Therefore, there cannot be any liability of tax. The appeal on this count is allowed. 7.1 Similarly, in the case of ABB Ltd. cited (supra), the Tribunal has considered this issue as held as under:- Further as far as commercial training or coaching services are concerned, the Learned Counsel submitted that the appellant had made the payment to M/s. ABB Technology Ltd. Zurich, Switzerland in connection with the participation of the employees of the appellants in a seminar conducted by the foreign company at a place outside India. Appellant has also submitted that 4 of their employees attended IMD Finance Business Control Seminar from 4-3-2007 to 16-3-2007 at Lusanne conducted by M/s. ABB Ltd., Zurich and the appellant has paid in aggregate Rs. 15,69,846/- to the foreign company. The semina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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