TMI Blog2017 (12) TMI 965X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner has given no finding on this aspect at all and has confirmed the demand and penalty - the matter is liable to be remanded back to adjudicating authority to examine the contention of appellant afresh and given proper findings. Manpower recruitment or supply service - commercial concern or not? - Held that: - the department has not brought out the fact that the foreign company is a commercial concern engaged in manpower recruitment or supply service - As per the agreement, fee and airfare and cost of the specialist is to be borne by M/s.Daikin Air-conditioning India. Admittedly, these payments are being made by Indian company to Japanese company as a whole - the issue is covered by the judgement of this Tribunal in the case of Volkswagen India Pvt.Ltd. vs. CCE [2013 (11) TMI 298 - CESTAT MUMBAI], where it was held that The global employees working under the appellant are working as their employees and having employee-employer relationship. There is no supply of manpower service rendered to the appellant by the foreign/holding company. Penalty - revenue neutral situation - technical consultancy service - Held that: - the entire situation was Revenue neutral as the credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of the Finance Act, 1994. 3. Learned Advocate for the appellant submits that on the issue No.I relating to the demand of service tax on BAS, the appellant had entered into an agreement with DIL and was performing the following activities, namely, to forward the customers request of procuring products from DIL and forward DIL's quotation and contractual proposal to the customers. For all these services, the appellant received consideration in foreign currency. He argued that under Export of Service Rules, 2005, the services provided by the appellant fall under the third category and the issue was covered by the following judgements: (1) Paul Merchants Ltd vs.CCE-2013 (29) STR 257 (Tri.) (2) Microsoft Corporation (I) Pvt.Ltd. Vs. CST, New Delhi-2014 (36) STR 766 (3) GAP International Sourcing India Pvt.Ltd. Vs. CST, Delhi-2015 (37) STR 230 (Tri.-Del.) (4) International Overseas Services Vs. CST, Mumbai-2016 (41) STR 230 (Tri.-Mumbai) (5) Gecas Services India Pvt.Ltd. Vs.CST,New Delhi-2014 (36) STR 556 (Tri.-Del.) (6) Samsung India Electronics Pvt.Ltd. Vs. CCE-2016 (42) STR 831 (Tri.-Del.) (7) Blue Star Limited Vs. CST-2016 (46) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that even assuming that M/s.DIL was providing services to the appellant, no service tax can be charged as there was no consideration of the services provided by M/s.DIL. She contended that the entire amount of salary was paid to the foreign nationals and no amount was retained by M/s.DIL. She relied upon the judgement of the Hon'ble Delhi High Court in the case of Intercontinental Consultants and Technocrats Pvt.Ltd.-2013 (29) STR 9 (Del). 7. Ld.Advocate also made submissions on limitation and contended that the Board's Circular No.111/5/2009-ST dated 24.2.2009 was in favour of the appellant and there was confusion on interpretation of clause Used outside India . 8. Ld.AR for the Revenue reiterated the findings in the order of the Commissioner (Adjudication). Ld.AR agreed that the first issue is covered by the judgement of this Tribunal in the case of Paul Merchants Limited. On second issue, he submitted that the issue was not contested at the adjudication stage and there was no finding by the adjudicating authority. On the issue of manpower supply, he submitted that there was no evidence to show that the salary was being paid and payment was made to Japanese c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. Vs.CST,New Delhi-2014 (36) STR 556 (Tri.-Del.) (5) Samsung India Electronics Pvt.Ltd. Vs. CCE-2016 (42) STR 831 (Tri.-Del.) (6) Blue Star Limited Vs. CST-2016 (46) STR 59 (Tri.-Mum.) (7) CST Vs. SGS India Pvt.Ltd.-2014 (34) STR 554 (Bom.) . By following the above judgments, we hold that the services provided by the appellant qualify as export of service. 13. The issue No.(II) relates to technical collaboration agreement between M/s.DIL and DAIPL under which M/s.DIL would train the employees of DAIPL with regard to the Daikin technology. For such training, DAIPL pays requisite training fee to M/s.DIL. On the issue No.(II) in the show cause notice, for which the Ld. Commissioner has confirmed the demand of ₹ 9,11,856/-, learned AR contended that the demand was not contested before the adjudicating authority. We find that in their submissions recorded in para 2.3 of Order-in-Original, the appellant has not contested the issue with the Revenue authority and suo motto paid service tax liability for this issue along with applicable interest on 30.06.2008. However the appellant had contended that issuance of show cause notice was bad in law as per Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entally recruitment of the agency being a commercial concern engaged in providing any such service to client would have to be satisfied. In the present case, facts are to the contrary. 15. The issue is also covered by the judgement of this Tribunal in the case of Volkswagen India Pvt.Ltd. Vs. CCE-2014 (34) STR 135 (Tri.-Mum.) wherein this Tribunal has held as under: 5.1 In view of the clauses of agreements noticed herein above and other facts, we hold that the global employees working under the appellant are working as their employees and having employee-employer relationship. It is further held that there is no supply of manpower service rendered to the appellant by the foreign/holding company. The method of disbursement of salary cannot determine the nature of transaction. 5.2 Further, in view of the rulings relied upon by the appellant as aforementioned, we find that the facts are covered on all four corners and accordingly, the appeals are allowed and Orders-in-Original are set aside. 16. In relation to issue No.(IV) of the show cause notice are pertaining to the demand of service tax under technical consultancy service on payment made to DIL for tec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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