Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2024 (2) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2024 (2) TMI 84 - AT - Service TaxLevy of Service Tax - Business Auxiliary Service - Technical Inspection and Certification Service - failure to discharge the Service Tax liability - Service Tax registration not taken - non-filing of Service Tax returns - HELD THAT:- It is brought out from evidence that garments are sold by the appellant to M/s. Bon Prix, Germany. M/s. JPS Trading, Dubai has played a role of middleman in conducting quality check through M/s. Fashion Force in India. According to the department, it is an agent of M/s. JPS Trading, Dubai. However, there is no payment made by the appellant to M/s. Fashion Force. It is not understood how there would be a service rendered by M/s. JPS Trading Company to the appellant so as to be taxable under reverse charge mechanism. Even if there was any service rendered in regard to quality checking, the demand ought to have been raised against M/s. Fashion Force, who is the service provider for quality checking. If the department is of the view that Fashion Force, Tirupur is the branch office of JPS Trading, Dubai then it would be M/s. Fashion Force, Tirupur who is liable to collect and pay service tax. It cannot be said that the deductions made in the invoices raised in the name of M/s. Bon Prix, Germany is a payment made to Fashion Force, Tirupur. For these reasons, we find that the demand raised under ‘BAS’, ‘Technical Inspection and Certification Service’ is without any factual or legal basis. M/s. JPS Trading, Dubai through their agent or their own office in the name of M/s. Fashion Force is carrying out quality check of the garments being exported. M/s. JPS Trading is rendering the service of a buying agent for M/s. Bon Prix, Germany. The service provider and service receiver are thus located in a non--taxable territory. There is neither any written or oral agreement between the Appellant and M/s. JPS Trading, Dubai. When M/s. JPS Trading, Dubai is a buying agent, he cannot be termed as a commission agent for the Appellant promoting export of garments. Reference made to the decision in the case of AQUAMARINE EXPORTS VERSUS C.C.E. & S.T. -SURAT-I [2022 (2) TMI 361 - CESTAT AHMEDABAD] wherein it was held that there is no commission agent exist who provided the service for export trading of the goods exported by the appellant. When no service provider is in existence it cannot be said that the appellant have received the commission agent service. Secondly, it is also fact that the appellant have not paid the commission to any person in the foreign country. Therefore, in absence of any consideration paid for the alleged commission agent services no Service Tax can be demanded. Involving different exporters where M/s. JPS Trading, Dubai have procured the goods for M/s. Bon Prix, Germany in the cases of M/S. VEERA CREATIONS VERSUS COMMISSIONER OF GST & CENTRAL EXCISE, COIMBATORE [2024 (1) TMI 525 - CESTAT CHENNAI] and M/S. HARINI COLOURS VERSUS THE COMMISSIONER OF GST & CENTRAL EXCISE, COIMBATORE [2024 (1) TMI 526 - CESTAT CHENNAI], this Tribunal has already set aside the demands and penalties imposed involving identical facts. The impugned order is set aside - appeal allowed.
|