TMI Blog2015 (5) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the case of Commissioner of Service Tax, Mumbai-III Versus M/s. SGS India Pvt. Ltd. [2014 (5) TMI 105 - BOMBAY HIGH COURT] followed - decision for the reasons given by the Tribunal can hardly be faulted with. - Decided against Revenue. - CENTRAL EXCISE APPEAL No.12 of 2014. - - - Dated:- 24-2-2015 - S.C. DHARMADHIKARI AND S.P. DESHMUKH, JJ. For The Appellant : Mr Pradeep S. Jetly a/with Ms Suchitra Kamble For The Respondent : Mr S.M.Kamtam i/by Mr Gaurav Agrawal and Mr Bharat Raichandani JUDGMENT (PER S.P. DESHMUKH,J) 1) The respondent M/s Maersk India Pvt Ltd is engaged in rendering taxable services as Steamer Agent to their overseas clients and is a registered service provider, receiving consideration in convertible foreign exchange. The services being rendered receiving consideration in convertible foreign exchange enjoyed exemption from payment of service tax pursuant to exemption notification bearing No. 6 of 1999 dated 19th April, 1999. The exemption was withdrawn under Notification dated 1.4.2003. The exemption, subsequently, is reinstated under Notification No.21 of 2003 dated 20th November, 2007. 2) Service Tax Authority had issued a show caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Indian shores albeit clients are residents abroad. It is further being submitted that the Circular dated 25.4.2003 is of no avail to the respondentassessee, for, it applies to only export of services, which continue to be tax free after withdrawal of notification bearing No.6/99 dated 4th April, 1999. According to him, the circular dated 25.4.2003 clarifying that export of service would continue to remain exempted even after rescission of Notification No.6/99 would not cover the present case. According to him, exemption notification No. 21 of 2003 dated 20th November, 2003 does not cover the period concerned, which is from 1.11.2003 to 19.11.2003. He submits that taking into account all aforesaid circumstances and the intent underlying relevant legal provisions holding the field the judgment and order of the Tribunal runs counter to the law and the circumstances. 7) Mr Jetly, submits that the matter gives rise to questions as to whether clarification issued by CBEC is retrospective in its operation and whether benefit of exemption would be available after withdrawal of Notification bearing No. 6/99 till its reinstatement under Notification bearing No.21/03. Since the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation dated 21/11/2003 reinstated the benefit available yet the demand is in respect of period in the interregnum when there was no exemption and as such the liability to pay service tax cannot be denied and the demand ought to be confirmed. 10) The observations reproduced hereinbelow from said judgment are relevant in the present matter: 17. The Tribunal was considering the respondents' challenge to the order of the adjudicating authority confirming the demand and penalty. The argument before the Tribunal on behalf of the respondent was that the respondent is a testing agency. The contract of service was with the overseas purchaser of goods. Thus, the privity of contract of the respondent is with the buyers of the goods who are located or situated outside India. Further, the argument was that this is a contract based tax. The contract is of services. There is no contract in this case with the manufacturer of goods in India. Further, there is no contract and no privity between the respondent and the exporter of the goods who is stated to be based in India. It is in these circumstances that the exemption notification though required to be strictly construed has rightly bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because intersectoral tax credit between service and goods are not allowed. Mr. Sridharan has placed reliance on clause (4) of the circular dated 25th April 2003. That is where it has been clarified that the question of taxability of secondary services which are used by primary service provider for the export of services. That has been clarified in paragraph no.4 of its circular. It is in these circumstances that we are of the opinion that the Tribunal has not erred in law in holding that the services provided by the respondent were not taxable. This aspect once becomes more clear if one peruses the notification no.21/03ST dated 20th November 2003. . 24. In the present case, the Tribunal has found that the assessee like the respondent rendered services, but they were consumed abroad. The clients of the respondents used the services of the respondent in inspection/test analysis of the goods which the clients located abroad intended to import from India. In other words, the clients abroad were desirous of confirming the fact as to whether the goods imported complied with requisite specifications and standards. Thus, client of the respondent located abroad engaged the services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsumption tax in the sense that it taxes noncommercial activities and is not a charge on the business, but on the consumer, then it is leviable only on services provided within the country. It is this finding and conclusion of the Supreme Court which has been applied by the Tribunal in the facts and circumstances of the present case. 12) Undoubtedly, recipient of service is resident abroad and the consideration for the service is being paid in convertible foreign exchange from abroad. In the present case, it is indisputable position that the respondentassessee was being allowed and had the benefit of exemption of service tax under Notification No.6/99 till it was rescinded on 1.3.2003. Also a circular had been issued clarifying that the service tax is not leviable on export of services. Subsequently exemption has been reinstated to the services wherein consideration was being received in convertible foreign exchange. 13) The Tribunal has properly considered the facts. The Tribunal has also considered that the appellant has rendered services in convertible foreign exchange and that the Notification Nos. 6/99 and 21/03 are identical providing exemption from service tax liabil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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