TMI Blog2019 (6) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Sanjay Jain, Authorised Representative for the Respondent ORDER PER C L MAHAR : The facts in brief are that the appellant is a company incorporated in India as a subsidiary company of M/s. STC China. The appellant are registered with the Service Tax department for providing services such as Business Auxiliary Services, Business Support Services, renting of immovable property services, and erection, commissioning or installation services, etc. During the course of audit of the appellant record for the financial year 2006-2007 to 2009-2010, it was detected that appellant had received certain commission amounting to ₹ 1,17,24,448/- which was received by the appellant from their foreign based parent company for providing them Business Auxiliary Service in the form of undertaking research for Indian Domestic market, to explore potential customers, conducted sales promotion and marketing behalf of their principal namely, M/s. STC. The appellant have submitted that no Service Tax was payable on the services provided by them on their foreign based parent company as the activity undertaken by them amounted to export of services a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uyers located in India. In view of these facts, the service is being exported by them to a foreign based service recipient. The learned advocate has also submitted that the issue is no more res integra as several decisions of this Tribunal has been pronounced on the subject wherein the services in a situation like one of the appellant has been considered as export of the service. Learned advocate has placed reliance on following decisions in support of his arguments:- 1. GAP International Sourcing (India) P Ltd . [2014 (TIOL-465-CESTAT-Del)] 2. Microsoft Corporation (I) (P) Ltd. Vs CST New Delhi [2014 (36) STR 766 (Tri-Del)] 3. Paul Merchants Ltd. Vs. CCE Chandigarh [2013 (29) STR 257 (Tri)] 4. IBM India Pvt. Ltd. Vs. CCE Cus and Service Tax, [2018 (17) GSTL 268 (Tri-Bang)] 5. Accent Overseas P. Ltd vs. CST, New Delhi [2018 (14) GSTL 367 (Tri-Del) and several others. 4. The learned advocate has also argued that the Circular No. 141/10/2011-TRU dated 13.05.2011 is inappropriate in the given facts of this matter. 5. We have also heard the learned DR Shri Sanjay Jai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of opinion on various points is resolved as under : (i) That the Business Auxiliary Services of promotion of market in India for foreign principal made in terms of agreement dated 1-7-2005 amount to Export of Services and the Hon ble Supreme Court decision in the case of State of Kerala and Others v. The Cochin Coal Company Ltd. - 1961 (12) STC 1 (SC) as also Burmah Shell Oil Storage and Distributing Co. of India Ltd. v. Commercial Tax Officers [1960 (11) STC 764] explaining the meaning of export is not 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 Service Rules and are not liable to Service Tax. (iii) The principle 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 Federation of Tax Practioners [2007 (7) S.T.R. 625 (S.C.)] as also the principles of destination based consumption tax were in the context of Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service are undertaken in India, it cannot be said that the use of the service has been outside India. The matter has been examined. Sub-rule (1) of Rule 3 of the 2. Export of Services Rules, 2005 categorizes the services into three categories : (i) Category I [Rule 3(1)(i)] : .. (ii) Category II [Rule 3(1) (ii)] : . (iii) Category III [Rule 3(1)(iii)] : For the remaining services (that would not fall under category I or II), which would generally include knowledge or technique based services, which are not linked to an identifiable immovable property or whose location of performance cannot be readily identifiable (such as, Banking and Other Financial services, Business Auxiliary services and Telecom services), it has been specified that would be export , - (a) If they are provided in relation to business or commerce to a recipient located outside India; and (b) If they are provided in relation to activities other than business or commerce to a recipient located outside India at the time when such services are provided. It is an accepted legal principle that the law ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
