TMI Blog2008 (10) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Kumar, Member (Technical) Z. U. Alvi, Adv. for the appellant Shri Sumit Kumar, Authorised Departmental Representative (DR) for the respondent [Order per Rakesh Kumar, Member (Technical)] - The Appellants, a Public Limited Company, are a 100% E.O.U. having their factory at village Simrai Industrial Area, Mandideep, Distt. Raisen, Madhya Pradesh where they manufactured cotton yarn and blended yarn for export. For export of their finished product, they availed the services of middlemen abroad who help them in procuring the export orders and for which they received commission from the Appellants. The service received by the Appellants from the middlemen abroad is 'Business Auxiliary Service' covered by Section 65(19) of the Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 77 to Rs.500/-. It is against these orders of the Commissioner (Appeals) that these appeals has been filed before the Tribunal. 2. Heard both the sides. 2.1 Shri Z.U. Alvi, Advocate, Ld. Counsel on behalf of the appellant made the following submissions:- (1) The service received by the Appellants has not been rendered in India but has been rendered by persons outside India from off shore locations. Such import of taxable service became taxable only w.e.f.18.4.06 when Section 66A was added to the Finance Act,1994 and Taxation of Services (provided from outside India and received in India), Rules 2006 were issued. The period of dispute in this case is from July-04 to March-05 and in view of this, service tax, liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rior to 1.1.05, there was no notification issued under Section 68(2) notifying the taxable service received from an off shore service provider, as the services for which the service recipient would be the 'person liable to pay the service tax'. (b) Service Tax Rules 1994 have been framed under Section 94(1) and (2) of the Finance Act, 1994 for the purpose of Assessment Collection of Service Tax. Service Tax Rules can, therefore, be resorted to only after the charge is created and fixed. Without the charging section, the rules cannot create or fix a charge. In this regard, reliance is placed on Supreme Court's judgment in the case of Laghu Udyog Bharti vs UOI reported in 1999 (112)ELT.365(SC). 2.2 Shri Sumit Kumar, Learned Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by fax, or through email the quotation from the buyers and the Appellants, thereafter, make a fax to those prospective buyers. On the customer's confirmation of the Appellant's offer the Appellants effect the export supplies. We do not accept this contention of the Appellants. During the period of dispute, the definition of 'Business of Auxiliary Service' as given under Section 65(19) of the Finance Act,1994, among other things, covered any service in relation to promotion or marketing or sale of goods produced or provided by or belonging to the client. The middlemen abroad find the prospective buyers and their requirement and inform the Appellants about the same. Thus, the middlemen abroad are providing to the Appellants a service in rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 66A has been inserted in Finance Act,1994 by the Finance Act,2006 incorporating provisions regarding charge of service tax on the services received from outside India and that a number of taxable services can be provided inside India as well as from abroad. 4.1) It has been pleaded by the learned Departmental Representative that in view of Hon'ble Supreme Court's observations in para 14 of its judgment in the case of Kerala State Electricity Board vs CCE, Thiruvananthapuram reported in 2008 (9) STR.3(SC), the Appellants as recipient of taxable service from off shore services providers not having any office in India, will be liable to pay the service tax. We do not agree with this contention, as in the case of Kerala State El ..... X X X X Extracts X X X X X X X X Extracts X X X X
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