TMI Blog2013 (3) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... This is an appeal filed by M/s. PricewaterhouseCoopers Private Limited, Chennai - 600 006 (hereinafter referred to as appellant) against the Order-in-Original No. 95/2009, dated 15-12-2009 passed by the Additional Commissioner of Service Tax, Service Tax Commissionerate. 2. Briefly stated facts of the case are that during the course of an audit conducted by the Officers of the Service Tax Commissionerate, scrutiny of ST 3 Returns, GAR-7 Challans, Financial statement and other related records for the year 2007-2008 revealed that the appellant had wrongly availed exemption under Notification No. 4/2004-S.T., dated 31-3-2004 in respect of services rendered to SEZ units, M/s. Perlos, Chennai and M/s. Sriram Properties and Infrastructure (P) Ltd., Chennai inasmuch as such services rendered by the appellant were not consumed within the Special Economic Zone. Hence, it appeared that Pricewater were not eligible to avail exemption under Notification No. 4/2004-S.T. Accordingly, the appellant were liable to pay Service tax to the tune of Rs. 64,185/- 2.1 It was also noticed that the appellant had rendered professional service relating implementation of MS Dynamics NAV Version 4.0 to M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 76 of the Finance Act, 1994. After due process of law, the Lower Adjudicating Authority confirmed the demand of Rs. 22,26,602/- under Section 73(1) of the Finance Act read with Section 73(2) of the Act and also imposing interest and penalty under Sections 75 and 76 of the Finance Act, 1994 vide impugned Order-in-Original. 3. Aggrieved, the appellant had filed this appeal mainly on the following grounds : (i) that M/s. Sriram is a developer of SEZ Units and Perlos is a SEZ unit in the Nokia Special Economic Zone and they have been granted the letters of Approval by the Government of India, Ministry of Commerce to act as developer/unit respectively and that these companies are operating in the respective Special Economic Zones (SEZ) and do not have any other place of business in the Country; (ii) that the Services availed from them have been consumed exclusively for the purpose of their SEZ operations and are consumed within the SEZ. Hence, the services rendered by them do not attract levy of Service tax and hence the benefit of Notification No. 4/2004 should be made available to them (iii) (a) that they rendered professional services relating to implementatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sold to Landmark was not includible in the taxable value inasmuch as the goods sale suffered CST; (b) the service rendered to Pricewaterhouse Coopers Lanka (Pvt) Limited, Srilanka, was an export of service and for having fulfillment the conditions set out in Rule 4 of the Export of Service Rules, 2005, he has requested to allow the appeal by setting aside the Order-in-original. 5. I have carefully gone through the case records and submissions made oral as well as written by the appellant. After disposing of the stay petition, let me take up the main appeal itself for decision. The issues to be decided in the instant case are whether - (i) the appellant is liable to pay Service tax on the charges realized by them for the services rendered to the SEZ units? (ii) the value of software sold to M/s. Landmark is includible in the taxable value for payment of Service tax by the appellant? (iii) the appellant is liable to pay service tax on the service charges received in foreign currency from M/s. Pricewater, Colombo? Let me discuss the issues one by one. (i) Whether the appellant is liable to pay Service tax on the charges realized by them for the services rendered to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Further, it is also seen that the SEZ Act has an overriding effect by virtue of Section 51 which provides that Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument have effect by virtue of any law other than this Act. In view of this specific provision, if the appellant is held ineligible for availing Notification No. 4/2004-S.T., considering its wordings i.e. consumption of services within SEZ, it could be treated as inconsistent notification. In this era of liberalized economy and single window clearances to industry, it would definitely not be the intention of the Government to deny certain benefit available under a Notification issued under one Act on the one hand and to extent benefit under different provisions for the same transaction on the other hand. (ii) Whether the value of software sold to M/s. Landmark is includible in the taxable value for payment of Service tax by the appellant? 5.2 I find from the records that the appellant was issued with show cause notice for non-payment of service tax on the amount reimbursed by M/s. Landmark towards purchase of software by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. PricewaterhouseCoopers Lanka Pvt. Ltd., in convertible foreign currency. The appellant had contended that though the work was in connection with Governance in the State of Assam, they had no privity of contract with the Government of Assam; that the beneficiary of the assignment was M/s. Pricewater, at Colombo that the work was carried out in India and was delivered to M/s. Pricewater, Colombo who had the ultimate responsibilty towards the deliverables. It is clear that the service has been provided by the appellant to M/s. Pricewater, Colombo for the work related to Governance in the State of Assam. Thus the service provided by the appellant is delivered from India and used outside India and thus this is an Export of Service. Moreover, the appellant had been paid consideration in foreign currency by M/s. Pricewater, Colombo. Hence, I hold that the service rendered by the appellant to M/s. Pricewater, Colombo for the work related to Governance in the State of Assam is export of service and the appellant is not liable to pay Service tax on the consideration received in foreign currency from M/s. Pricewater, Colombo during the disputed period. 6. In view of the above discussi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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