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2023 (8) TMI 246 - AT - Service TaxExemption from payment of service tax - export of service - business auxiliary service (BAS) - applicability of POPOS Rules - period of dispute from 01.07.2012 to 31.03.2015 - extended period of limitation - HELD THAT:- The issue stands decided in favour of the appellant by a larger bench of the Tribunal in M/S. ARCELOR MITTAL STAINLESS (I) P. LTD (NOW KNOWN AS M/S. ARCELOR MITTAL DISTRIBUTION SOLUTIONS INDIA PRIVATE LIMITED) VERSUS COMMISSIONER SERVICE TAX MUMBAI-II [2023 (8) TMI 107 - CESTAT MUMBAI]. The factual position before the larger bench was that a prospective customer in India was approached by Arcelor India and the request was forwarded by Arcelor India to the foreign entity which ultimately supplied the goods to the Indian customers. For the service provided by Arcelor India to the foreign entity i.e. Arcelor France, Arcelor India received commission in convertible foreign currency. The department believed that service tax was leviable on this commission received by Arcelor India since the services were performed and consumed in India and they would not qualify as export of service. This contention was repelled by the larger bench and it was observed that though the goods were being supplied to customers in India, the actual recipient of BAS provided by Arcelor India is Arcelor France. Thus, irrespective of whether the 2005 Export Rules or the 2012 Rules are applicable, the appellant would render ‘export of service’ which was not taxable till 01.10.2014, whereafter it became taxable as the appellant became an intermediary. Extended period of limitation - HELD THAT:- In the present case, the appellant, as is seen from the impugned order, had filed ST-3 Returns for the period from July 2012 to September 2014 and had shown the whole commission earned during the relevant period. The order also takes notice of the fact that the appellant had by a letter dated 31.07.2012 revealed to the department that it was providing services to the foreign entity for the products sold in India and that it had received commission payment for such services. It also needs to be noted that these facts had been brought to the notice of the department on 31.07.2012, but the show cause notice was issued to the appellant only on 03.09.2014 - the extended period of limitation could not have been invoked. It is, therefore, evident that not only had the appellant rendered ‘export of service’, be it under the 2005 Rules or under the 2012 Rules, but the extended period of limitation also could not have been invoked in the facts and circumstances of the case. - the impugned order dated 22.02.2017 passed by the Commissioner (Appeals), therefore, cannot be sustained and is set aside - appeal allowed.
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