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The Commissioner of Service Tax, Mumbai-VI Commissionerate Versus M/s. A.T.E. Enterprises Pvt. Ltd.

2017 (8) TMI 1233 - BOMBAY HIGH COURT

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 .....

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outside the purview of the collection of service tax, can seldom be flawed - as there is no case made out by the appellant, so also there is no question of law so stated to be involved in the matter - appeal dismissed - decided against appellant. - Central Excise Appeal No. 14 of 2016 - Dated:- 31-7-2017 - ANOOP V. MOHTA AND SMT. ANUJA PRABHUDESSAI, JJ. Mr. M. Dwivedi, Advocate for the Appellant. Mr. B.J. Raichandra a/w Mr. Anshul Jain, Advocate for Respondent. ORDER JUDGMENT (PER ANOOP V. MOHT .....

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s 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? (b) Whether the CESTAT was justified in passing the impugned order dated 07.01.2015 relying upon several judgments of the tribunal which are not applicable in the facts and circumstances of the present case? 4. We have to consider the rival submission keeping in ming the scop .....

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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 .....

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oreign telecom service provider when he is in India and using the appellant telecom networks. Revenue held a view that the consideration for services rendered in India is taxable under Business Auxiliary Service. The Bench after considering the provisions of Export Services Rules and Board clarifications, and the decision of Microsoft Corporation (I) Pvt. Ltd. Case held in favour of the assessee by recording as under: 54. In view of the above, the difference of opinion on various points is resol .....

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t relevant inasmuch as the same deals with the export of goods and not export of services; (ii) That the Business Auxiliary Services provided by the assessee to their Singapore parent company was delivered outside India as such was used there and is covered by the provisions of Export of Services Rules and are not liable to Service Tax. (iii) The principal of equivalence between the taxation of goods and taxation of services, as laid down by the Hon'ble Supreme Court in the case of All India .....

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) 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 .....

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cle 280(1)(b) or in any of the article of the Constitution of India. Though the Apex Court's judgments in the case of the State of Kerala v. The Cochin Coal Company Ltd. [(1961) 2 STC 1 SC] and Burmah Shell Oil Storage & Distribution Co. of India v. Commercial Tax Officer & Others reported in (1960) 11 STC 764 (SC) explain the meaning of the term export , the ratio of these judgments which are with regard to export of goods, is not applicable for determining what constitutes the expo .....

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x on certain services. This principle does not imply that Service Tax should be levied and collected in exactly the same manner in which the export of goods is understood. In fact the question as to what constitutes the export or import of service was neither raised no discussed in the above-mentioned judgments of the Apex Court. As discussed in this order, the Export of Service Rules, 2005 are in accordance with the Apex Court's ruling in the above-mentioned judgments that Service Tax is a .....

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, 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 .....

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erson abroad, coordinate Bench relied upon the judgment of the Paul Merchants Ltd. Case; interpreting provisions of export of service rules to hold such services as rendered by M/s. GAP International Sourcing (India) Pvt. Ltd. would be export of services and would not fall under the category of BAS. The said ratio is applicable in full force in the case in hand. 7. As there is no case made out to interfere with judgments/findings of which are based upon the facts of law. 8. The learned counsel a .....

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