TMI Blog2023 (6) TMI 1197X X X X Extracts X X X X X X X X Extracts X X X X ..... e the services in question has been rendered outside India, the same is not taxable as they qualify as export of services in terms of rule 3 of export of service Rules, 2004. Extended period of Limitation - HELD THAT:- The whole issue relates to interpretation of the law because the Department was not certain of the taxability of the impugned services and the definition of banking and financial service was changed from time to time. Hence the extended period cannot be invoked and by that entire demand is barred by limitation as the demand pertains to the period 2005-2008 whereas the show cause notice was issued on 24.09.2010 which is beyond the normal period of limitation. There is no infirmity in the impugned order passed by the Ld. Commissioner - Appeal dismissed. - Service Tax Appeal No. 1229 of 2011 - FINAL ORDER NO. 60169/2023 - Dated:- 27-6-2023 - HON BLE MR. S. S. GARG , MEMBER ( JUDICIAL ) And HON BLE MR. P. ANJANI KUMAR , MEMBER ( TECHNICAL ) For the Appellant : Sh. Aneesh Deewan , Authorized Representative For the Respondent : Ms. Krati Singh Sh. Aman Singh Advocates ORDER PER S. S. GARG The present appeal is directed against the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company and hold that nothing has come on record that the respondent is either a banking company, financial institution or non banking financial company. He further submitted that the commissioner has wrongly relied upon the decision of the Hon ble Tribunal in the case of Banswara Syntec Vs. Commissioner of Central of Customs 2010 (18) S.T.R. 68 (Tri.-Del.). He also submitted that the commissioner has erroneously held that the body corporate has been covered under Section 65(12) but these are only those body corporate which is either banking company, financial institution or non banking financial company and that nothing has come on record that the respondent is either banking company, financial institution or non banking financial company. He also submitted that the Ld. Commissioner has failed to take note of the statutory provisions that the definition of the banking and other financial services as per Finance Act, 2002 extended the levy of service tax even to a body corporate other than banking company or a financial institution including a non banking financial company and also failed to take note of instructions issued by the board vide letter dated 01.08.2002. He further s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... K Ltd. 2016 (46) STR 742 (Tri.-Mum.). 7. It is her further submission that the corporate guarantee is not an activity that is covered under ambit of BOFS as per Section 65(12) of the Act. In support of this submission she relied upon the following decisions:- - Commissioner of CGST Central Excise Mumbai East Vs. Edelweiss Financial Services Ltd 2022 (2) TMI 1359 CESTAT Mumbai upheld by Supreme Court at 2023 (4) TMI 170. - Sterlite Industries India Ltd. Vs. Commissioner of GST Central Excise 2019 (2) TMI 1249 CESTAT Chennai. - Infrastructure Leasing Financial Services Ltd Vs. Commissioner of Service Tax I 2021 (9) TMI 450 CESTAT Mumbai. She also submitted that even if it is assumed (but not admitted) that services in question qualify as BOFS, the same shall not be taxable as they qualify as export of service in terms of Rule 3 of Export of Service Rules, 2005 and for this submission she relied upon the following decisions :- - Sara Sae P Ltd. Vs. Commissioner 2020 (12) TMI 701 - CESTAT New Delhi. - Involute Engineering Pvt. Ltd. Vs. Commissioner 2020 (12) TMI 533-CESTAT, New Delhi. 8. She further submitted that the service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase or sale of foreign currency, including money changing: (V) asset management including portfolio management, all forms of fund management, pension fund management, custodial, depository and trust services, (vi) advisory and other auxiliary financial services including investment and portfolio research and advice, advice on mergers and acquisitions and advice on corporate restructuring and strategy; provision and transfer of information and data processing; and (viii) banker to an issue services; and (ix) other financial services, namely, lending issue of pay order, demand draft, cheque, letter of credit and bill of exchange, transfer of money including telegraphic transfer, mail transfer and electronic afe providing bank guarantee, overdraft facility bill discounting facility, safe deposit locker, safe auts, operation of bank accounts ; (b) foreign exchange broking and purchase or sale of foreign currency including many changing provided by a foreign exchange broker or and authorised dealer in foreign exchange or an authorised money changer, other than those covered under sub-clause (a). [explanation. - For the purposes of this clause, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en by the respondent for its subsidiary is covered under the definition of BOFS. This issue has been considered in various decisions relied upon by the respondent cited (Supra), the Tribunal in the case of Sterlite Industries India Ltd (Supra) has examined this issue wherein it has been observed in para 6.6 which is reproduced hereinbelow: 6.6 From the facts on record, it is evident that the appellants did not provide bank guarantee to their associate companies in India, neither did they receive any bank guarantee from parent company abroad What they provided / received was only a corporate guarantee to/from their associate companies for which exercise they had received / paid guarantee commission. The department has taken the view that Corporate Guarantee and Bank Guarantee are one and the same. We are however unable to agree to this proposition that a corporate guarantee is nothing but bank guarantee by another name. A bank guarantees is given by a bank on behalf of the customer to the beneficiary bank guaranteeing the payment in case of default by customer. A corporate guarantee is a guarantee given by the corporate to cover their own exposure or exposure of some other rela ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
