TMI Blog2022 (6) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of commissioning charges and office expenses though as a distributor the payment of commission is understandable. Moreover, liability to service tax does not depend only on the wordings of the agreement and the essence of the agreement needs to be considered provided the other aspects of levy are decided. In case of machine commissioning charges, the appellant is a service provider and the Indian purchaser of the machine is the service recipient. The appellant may have rendered the service as an agent of his overseas principals and may have received the consideration from them towards such service. Service Tax being Destination Based Consumption Tax , as the service is rendered and consumed in the country, the service cannot be said to have been exported. For this reason, the contentions of the appellants are not acceptable. Reimbursed office expenses - HELD THAT:- There are no service aspect in the same. Even if one assumes that it is a service rendered by the appellant, it is a service rendered to themselves. Therefore, the service tax is not leviable. Commission received by the appellants - HELD THAT:- There is an element of service and the same appears to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He submits that the show cause notice suffers from legal infirmity as it does not spell out the reasons for rejection. He further submits that application for refund was filed within time, as the circular was issued on 24.02.2009 and audit was conducted 21.03.2009. He further submits that sales commission received is wrongly taken as machine commissioning charges; there is no scope for the commissioning of the machines as per agreement; the appellant has acted as an agent of the principal. He submits that it is not disputed that the service tax was paid under mistaken notion of law and therefore, Government cannot retain the same. He relies on the following case laws: (i) Ashok Shety Associates C.A. Vs. CCE, Mangalore- 2017 (4) GSTL 53 (Tri. Bang.). (ii) 3E Infotech Vs CESTAT Chennai and CCE Chennai (2018) CMA 601/2018. (iii) Parijat Construction Vs CCE, Nasik, 2018 (359) ELT 113 (Bombay). (iv) CCE, Nagpur Vs SGR Infrateck Ltd. (v) Pallavapuram Tambaram MSW Pvt. Ltd. Vs Commissioner of Service Tax, Mumbai 2018 ACR 132 CESTAT Mumbai. (vi) Ishwar Metal Industries Vs CCE, Jaipur (Service Tax appeal No.51834 of 2018, Final Order No.50064/2022 dated 28.01. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the appellants submits that the amount received by them from their overseas principals is towards sales commission. 6. We find, however, on-going through the records of the case, that the original authority has gone through the bills and has given a clear finding that the bills raised were raised as follows: Year No. of bills raised Description mentioned in the Bill Amount equivalent to Indian Rs. 2006-07 4 Machine commissioning charges 95,01,418/- 2 Office maintenance charges 4,02,160/- 1 Commission 3,56,842/- Total 7 1,02,60,420/- 2007-08 10 Machine commissioning charges 4,41,02,634/- 3 Office maintenance charges 5,88,282/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rguments on the merits of the case, except for claiming that the services are exported and the payment of Service Tax was under a mistaken notion of law. 9. We find that from the bills raised most of the amount received by the appellants appears to be for machine commissioning charges. Other charges are on account of office maintenance charges and commission. It is seen that the charges on account of machine commissioning are for the services rendered by the appellant to the purchasers of the machine. In terms of the agreement and as per records of the case, it is seen that the overseas suppliers deliver the machines directly at the premises of the customers. In such circumstances, it cannot be said that the services rendered by the appellants are export of services, notwithstanding the fact that payment is received from the overseas suppliers. It is understood that as a business model, the overseas suppliers does not charge their customers in India for installation and commission of the machines and the same are borne by them and paid to the appellants. For this reason, also, we are not inclined to consider such service as Export of Service. As far as the amounts received by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the provisions of Section 11B. We find that Hon ble Madras High Court in a recent judgment in the case of M/s M.G.M International Exports Ltd. Vs the Assistant Commissioner of Service Tax, Chennai, 2021 (4) TMI 1167 held that the refund of tax if any borne by the petitioner had to be made only within a period of limitation prescribed under Section 11B of the Central Excise Act, 1944 . We also find that this Tribunal has been holding the same in a number of cases. Reference is made particularly the cases cited by the learned Authorized Representative. 12. In view of the above, we partly allow the appeals and partly dismiss the same in the following terms: (i) Payment of Service Tax by the appellants on account of Machine Commissioning Charges is in order and therefore, the appellants are not entitled to any refund on this ground. (ii) The appellants are not required to pay Service Tax on Office Expenses and Commission . (iii) For the limited purposes of (ii) above, the appeals are remanded back to the Original Authority with a direction to examine if any refund is due, subject to limitation and if otherwise admissible. (iv) The miscellaneous applications for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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