Tax Management India.Com

Home Page

Home List
← Previous Next →

2017 (8) TMI 1233

Business Auxiliary Services - Whether the services provided by the Respondent herein, in accordance with various contracts entered into with overseas manufacturers, is classifiable under “Business Auxiliary Services” as defined under section 65(105)(zzb) of the Finance Act, 1994 and if so, whether the said services provided are to be treated as export of services or not? - Held that: - reliance placed in the case of Commissioner of Service Tax, Mumbai-III Versus M/s. SGS India Pvt. Ltd. [2014 (5 .....

X X X X X X X

Full Contents

X X X X X X X

A, J.): This is an Appeal under section 35G of the Central Excise Act, 1944 (for short the Act ). 2. Heard finally by consent at admission stage. 3. The appellant has raised in the memo the following substantial questions of law: 5. In the premises stated hereinabove, the appellant submits that the following question of law arises for determination by this Hon'ble Court: (a) Whether the services provided by the Respondent herein, in accordance with various contracts entered into with oversea .....

X X X X X X X

Full Contents

X X X X X X X

ports. His duty as is ascertained from the agreement, indicates that he is supposed to procure the orders and pass it on to the overseas manufacturers; on receipt of such orders, the overseas manufacturers executes the same on his own and the consideration for such supplies is directly paid to the overseas manufacturers by the person who has placed the order. The entire transaction in our considered opinion seems to be of only procurement of orders and the rendering of services, if any, by the a .....

X X X X X X X

Full Contents

X X X X X X X

ved as under: (i) That the business auxiliary services of promotion of market in India for foreign principal made in terms of agreement dated 01/07/2005 amount to Export of Services and the Hon'ble Supreme Court decision in the case of State of Kerala and Others Vs. The Cochin Shell Company Ltd. [1961 (12) STC 1 (SC) as also Burmah Shell Oil Storage and Distrusting Co. of India Ltd., Vs. Commercial Tax Officers [1960 (11) STC 761] = 2002 TIOL 966 SCCTCB explaining the meaning of export is no .....

X X X X X X X

Full Contents

X X X X X X X

) Inasmuch as the appeal No. ST/828/2010 was not argued by both the sides, the same can be listed for final disposal even though issue involved is identical. (v) Having held that services involved were export of services, the same are not liable to be sustained against the appellants. 6. The CESTAT, after recording above has also noted the provisions of law and the judgments read and referred by the parties in this regard. The finding recorded in paras 10 and 11: 10. In case of Paul Merchants Lt .....

X X X X X X X

Full Contents

X X X X X X X

rt of services. There is no question of Export of Services Rules, 2005, being in conflict with Article 286(1)(b) of the Constitution of India. (ii) The principle of equivalence between the taxation of goods and taxation of service had been laid down by the Apex Court in the case of Association of Leasing & Financial Service Companies v. Union of India (supra) and All India Federation of Tax Practitioners v. Union of India (supra) in the context of constitutions validity of levy of Service Ta .....

X X X X X X X

Full Contents

X X X X X X X

, issue was held in favor of the assessee . 11. In the recent case of GAP International Sourcing (India) Pvt. Ltd. (supra) the coordinate Bench of this Tribunal held in favour of the assessee wherein the facts were more or less similar. That is, the appellant M/s. GAP International Sourcing (India) Pvt. Ltd., entered into a service support agreement with Gap USA for rendering various services relating to procurement of goods, recommending fabrics to be used for manufacture of garments, recommend .....

X X X X X X X

Full Contents

X X X X X X X

ppearing for the Respondent has relied upon the judgment in The Commissioner of Service Tax, Mumbai-II Vs. SGS India Pvt. Ltd. 2014 (34) S.T.R. 554 (Bom.) …....24. It is in that sense that the Tribunal holds that the benefit of the services accrued to the foreign clients outside India. This termed as 'export of service'. In these circumstances, the Tribunal takes a view that if services were rendered to such foreign clients located abroad, then, the act can be termed as 'expor .....

X X X X X X X

Full Contents

X X X X X X X

of service then, the order passed by the Tribunal does not raise any substantial question of law. 9. The Division Bench of this Court in Commissioner of Service Tax, Mumbai Vs. Maersk India Pvt. Ltd. 2015 (38) STR 1121 (Bom.) held that the observations reported in 2014 (34) S.T.R. 554 (Bom.) (supra) aptly apply in the present case. The situation shows that the consideration by the Tribunal about service by the responden tassessee to a foreign recipient being outside the purview of the collectio .....

X X X X X X X

Full Contents

X X X X X X X

 

 

← Previous Next →