TMI Blog2020 (10) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... SITQ INDIA PVT. LTD. VERSUS C.S.T., DELHI [ 2018 (3) TMI 770 - CESTAT NEW DELHI] where it was held that Tribunal in the case of AMP capital Advisors Indian Pvt. Ltd. Vs. CST, Mumbai [2015 (6) TMI 122 - CESTAT MUMBAI], observed that the appellant providing advisory services to AMP capital, Australia and the service recipient using said advice received for further advising for their customers in India, would qualify for export of service. The services provided by the appellant is classifiable under Management, Business Consultancy Services , and, therefore, the demand of service tax is not sustainable - Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 51670 of 2017 - FINAL ORDER NO. 50744/2020 - Dated:- 22-1-2020 - HON BLE MR. JUSTICE DILIP GUPTA, PRESIDENT AND HON BLE MR. C L MAHAR, MEMBER (TECHNICAL) Present for the Appellant: Shri Abhishek Boob, Advocate Present for the Respondent : Dr Radhe Tallu, AR ORDER PER C L MAHAR: The brief facts of the matter are that the appellant is registered under the Finance Act, 1994 under various categories of services such as Management, Business Consultancy Services (MBCS), Business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -12 ₹ 1,35,11,377/- 4. Both the show cause notices were taken up for adjudication by the Commissioner of Service Tax, Delhi II and the Commissioner vide his Order-in-Original dated 03 January, 2017 decided both the Show cause notices. The demand raised in the first Show cause notice covering the period 25 October, 2007 to 31 March, 2011, was dropped by the Adjudicating Authority on the ground of being time barred. The demand made in the second show cause notice for the period 2011-2012 for ₹ 1,35,11,377/- was confirmed in the impugned Order-in-Original dated 03 January, 2017. The penalty under section 76 and section 77 was also confirmed by the Adjudicating Authority. The main ground on which the service tax demand was confirmed by the Adjudicating Authority is as follows: 48.(a) It is undisputed fact that the Noticee has provided their services in terms of the Agreement dated 01.04.2010 entered into by them with their holding company namely M/s. SITQ Maruitius Advisory Services (hereinafter referred to as Advisor ). The relevant clauses of the said agreement have also been brought out in the SCN. On carefully sifting through the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 in which the turn over of the appellant.s firm was specifically provided which the Department has not contradicted. The entire receipt of service charges have been reflected in the financial statement and hence the appellant duly filed ST 3 return for the financial year 2011-2012 for which the demand pertains. On the basis of this contention, the advocate contended that the adoption of best judgement method in determining the service receipts and consequent confirmation of demand is legally not sustainable. In support of this claim, the learned advocate relied on the decision in Carisberg India Pvt Ltd. vs Commissioner of Service Tax, Delhi reported in [2016 (42) STR 55 (Tri-Del)], wherein the Tribunal held that non-submission of basis or reasons for resorting to best judgement assessment is not justifiable under law. The learned advocate also relied on Tribunal.s decision in Coca Cola (I) Pvt. Ltd. vs Commissioner of Service Tax, Delhi reported in [2015 (40) STR 547 (Tri-Del)]. 7. The learned advocate has also vehemently contested that the service provided by the appellant is not covered under taxable category of Real Estate Agent Service and the service provided by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isory services in relation to investment and not to any particular real estate / project. It is advising in respect of investment in Companies in real estate sector in the form of equity / debt and not in real estate property per se. Further, the advisory services provided by the appellant are not restricted to advising in respect of investments. It is wider in scope and also includes general economic and market conditions, tax environment etc. The appellant also advises on various funding, investment structuring options. 15. The learned Advocate argued that while passing the impugned order, the Department has relied completely on the nomenclature used in the Advisory Service Agreement between SITQ and SIT Mauritius and Service Agreement between SITQ and third party advisors, without looking to the true nature of the service. The true nature of the service is apparent from the reports issued by the appellant and submitted in the course of audit proceedings. It is submitted that it is clear from the reports that the Appellant advises on various aspects in relation to the acquisition of the Companies wherein real estate is just one part of the report. A perusal of the reports clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... final decision dated 13.03.2018, wherein it has been held as under:- 7. On close reading of the scope of the agreement as envisaged in the heading Duties and Services , we find that the appellants would perform research and analysis in respect of investments identified by overseas clients and advise them with respect of investment opportunities. It is seen from clause (i) to (vi) of Para 2 (c) of the said agreement that the appellants would render the service to the overseas client as advisory in respect of investment opportunity in Indian companies. The job of the appellant is limited to research and analysis with respect to investments at the direction of the overseas clients and also to advise them with respect to investment opportunities. 8. We find that the definition of MBCS includes the service of any person, who renders any advice, consultancy or technical assistance in relation to financial management. The contention of the ld. Counsel for the appellants is that the investment as mentioned in the agreement would be only in the shares of the company and the company is separated from its shareholders. Hence, it is contended that the appellant had rendered the servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces, though related to the analysis carried out in India, but the services are provided to Australia based firm M/s. AMP Capital (Australia). These services are not provided to any person located in India and nobody in India is concerned about the services. Since the services are provided to Australia based firm it is that firm, M/s. AMP Capital (Australia) who is the sole recipient of. the services and on the basis of these services, M/s. AMP Capital (Australia) is further providing services to the foreign based companies. That shows, that the services provided by the appellant is consumed by M/s. AMP Capital (Australia), Australia for providing his output services to foreign based companies. Under these facts there is no dispute that the services provided by the appellant are indeed used and consumed by M/s. AMP Capital (Australia) in Australia. Therefore, the services are used outside India. 6.1 On the identical set of facts, this Tribunal in the following cases have held as under : (i) In the case of Amha Research (India) Pvt. Ltd.: 3. On going through the records and after considering the submissions of both sides, we find that in this case, the appellant is a subsid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived the payment in convertible foreign exchange. Therefore, as per Rule 3(l)(iii) of the above said Rule, the services provided by the respondent not qualifies as export of service as the service provided by the respondent to a service recipient located outside India and are to be used outside India for their benefit. Further, I find that the issue came up before this Tribunal in the case of Paul Merchants Ltd. (supra) and in that case also this Tribunal has held that if the services recipient is located outside India and the same has been utilized outride India, therefore it is a case of export of service. Further in the case of Vodafone Essar Cellular Ltd. - 2013 (31) S.T.R. 738 this Tribunal held that telecom services provided to inbound roaming international consumers would qualify as export of service. In the said case, Vodafone provided telecom services in India to international in-bound roamers registered with foreign telecom network operators but located in India at the time of providing of the said services. In that case this Tribunal held that Vodafone rendered the telecom service, in the context of international roaming, the benefit accrued to the foreign telecom servic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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