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2022 (6) TMI 923 - AT - Service TaxRefund of Service Tax paid - Business Support Service - Management and Repair Service - export of services or not - applicability of time limitation - period 2006-07 & 2007-08 and 2008-09 - HELD THAT:- In terms of the distributor agreement, the appellant entered into, the appellants are appointed as distributors. In terms of Clause-2 a, the appellants as distributors as its own expense, exert its best efforts, through advertising and other promotional devices to sell and promote the sale and use of the Products throughout the Territory. Distributor’s efforts will include use of facility signage, showroom display kits and other display and advertising materials described in the HAAS Factory Outlet manuals, Distributors shall obtain the prior approval of HAAS for any advertising and promotional materials not prepared by HAAS, which approval shall not be unreasonably withheld or delayed. Tte appellants have no case on merits as far as machine commissioning charges and office expenses are concerned. There is no clause in the agreement about the payment of commissioning charges and office expenses though as a distributor the payment of commission is understandable. Moreover, liability to service tax does not depend only on the wordings of the agreement and the essence of the agreement needs to be considered provided the other aspects of levy are decided. In case of machine commissioning charges, the appellant is a service provider and the Indian purchaser of the machine is the service recipient. The appellant may have rendered the service as an agent of his overseas principals and may have received the consideration from them towards such service. Service Tax being “Destination Based Consumption Tax”, as the service is rendered and consumed in the country, the service cannot be said to have been exported. For this reason, the contentions of the appellants are not acceptable. Reimbursed office expenses - HELD THAT:- There are no service aspect in the same. Even if one assumes that it is a service rendered by the appellant, it is a service rendered to themselves. Therefore, the service tax is not leviable. Commission received by the appellants - HELD THAT:- There is an element of service and the same appears to have been rendered to the overseas principals. Time Limitation - HELD THAT:- Apex Court in the case of MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT] has categorically held that all refunds are governed by the provisions of Section 11B - Hon’ble Madras High Court in a recent judgment in the case of M/S. M.G.M. INTERNATIONAL EXPORTS LTD. VERSUS THE ASSISTANT COMMISSIONER OF SERVICE TAX, CHENNAI [2021 (4) TMI 1167 - MADRAS HIGH COURT] held that “the refund of tax if any borne by the petitioner had to be made only within a period of limitation prescribed under Section 11B of the Central Excise Act, 1944”. Appeal allowed in part.
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