TMI Blog2012 (9) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... 495 of 2011 - - - Dated:- 2-7-2012 - V.M. SAHAI AND N. V. ANJARIA, JJ. R.J. Oza and Ms. Mital Ukani for the Appellant. Hardik P. Modh for the Respondent. JUDGMENT V.M. Sahai, J. M/s. Bayer Diagnostics India Ltd. (Now M/s. Seimens Healthcare Diagnostics Ltd.), is engaged in the manufacture of Diagnostic kits falling under Chapter 38 of CETA, 1985. The respondents were exporting their finished goods to various countries and for procurement of export orders they were receiving services of Overseas Commission Agents and paying commission to them for the services received. The services provided by the commission agents fall under the category of "Business Auxiliary Services" and was exempted from service tax vide Notification No. 13/2003/ST dated 20.6.2003. However, the said Notification was amended vide Notification No. 8/2004-ST dated 9.7.2004 wherein all services provided by commission agents except those in relation to sale and purchase of agricultural produce were made taxable. In the present case, the Overseas Commission Agents were not resident of India and also were not having their office in India, the liability to pay service tax was upon the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve heard Mr. R.J. Oza, learned Senior counsel assisted by Ms. Mital Ukani for Central Excise and Customs and Mr. Hardik Modh, learned counsel appearing for the respondent. This Tax Appeal has been filed by the Central Excise and Customs Commissioner on the following proposed substantial question of law. "Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law in confirming order of the Appellate Commissioner to set aside demand of service tax, on services provided by the service provider, not resident of India and also not having their office in India, even after 1.1.2005, when the law provides for levy of such Service Tax from 1.1.2005 vide Notification No. 36/2004-ST dated 31.12.2004 read with Rule 2( i )( d )( iv ) of Service Tax Rules 1994 and when Supreme Court has upheld levy of such service tax from 1-1-2005." 6. Though Commissioner (Appeals) has relied on the decision of the Bombay High Court in Indian National Shipowners Association v. Union of India [2009] 18 STT 212 and had allowed the appeal of the respondent holding that service tax could not be demanded from the respondents and therefore, there was no questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be provided. (2) Where a person is carrying on a business through a permanent establishment in India and through another permanent establishment in a country other than India, such permanent establishment shall be treated as separate persons for the purposes of this section. Explanation:1 . - A person carrying on a business through a branch or agency in any country shall be treated as having a business establishment in that country. Explanation 2. - Usual place of residence, in relation to a body corporate, means the place where it is incorporated or otherwise legally constituted." After enactment of section 66A by the Finance Act, 2006 with effect from 18.4.2006, services received from abroad by a person belonging to India became taxable in the hands of Indian residents and Indian recipients of taxable services was deemed to be a service provider. Therefore, on or after 18.4.2006, even if the service was rendered by a service provider who was situated outside India was not liable to tax as he had no office or establishment in India nor the recipient in India was liable to service tax as the service tax was required to be paid by a person who had been provided servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re was no such provision in the Act and therefore, the Respondents had no authority to levy service tax on the members of the Petitioners-association." Therefore, it is not necessary for us to re-examine the question again as we fully agree with the view taken by the Division Bench of the Bombay High Court. It will not be out of place to mention over here that the aforesaid Division Bench decision of the Bombay High Court has been affirmed by the Apex Court in Union of India v. Indian National Shipowners Association 2010 (17) STR J57, wherein the Apex Court has dismissed the SLP after hearing the counsel for the parties. It will not be out of place to mention over here that the above-mentioned decision of the Bombay High Court has been followed by the Division Bench of this Court in CST v. Quintiles Data Processing Centre (I) (P.) Ltd. [2012] 21 taxmann.com 197 (Guj.). 9. It appears that due to the decision of the Bombay High Court in Indian National Shipowners Association ( supra ) and other decisions, the Government of India, Ministry of Finance (Department of Revenue), Central Board of Excise and Customs, New Delhi has issued a circular No. 276/8/2009-CX.8A dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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