TMI Blog2023 (11) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of partnership is present in the MoU between the Appellant and M/s KSE, as they have agreed to share the profits from the commission earned by providing service to the foreign principal located at Romania. Further, it is an admitted fact that the service in question has been received by M/s MS of Romania who have paid for the same in convertible foreign exchange - it is further held that it does not make any material difference that the Appellants have received their share of commission through M/s KSE. Extended period of limitation - suppression of facts or not - HELD THAT:- There is no element of fraud, suppression, misdeclaration, etc. The Appellant was registered with the Department and have disclosed such turnover or receipt of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artner M/s KSE. The case of the Department is - such service provided by the Appellant would not qualify as export of service in as much such services have not been directly provided to M/s MS and commission has not been received in freely convertible currency, rather they worked on behalf of M/s KSE for marketing the product of M/s MS. Accordingly, SCN dated 03.12.2010 has been issued to the Appellant to pay an amount of Rs.8,13,657/- on such services provided by the Appellant, as the same does not qualify as export of service for the period 01.01.2006 to 31.03.2006, by invoking extended period of limitation. The Appellant contested the SCN by refuting each and every allegation leveled by the department, however, the learned Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts of the present case, service has been provided from India and delivered outside India and used in business outside India by the principal located in Romania. Admittedly, the payment for such service was received by M/s KSE in convertible foreign exchange, which has been shared with this Appellant, as per the Joint Venture Agreement. The learned Commissioner (Appeals) has erred in holding that the service in question was not provided jointly but independently by the Appellant to M/s KSE in India and it was M/s KSE, who are the exporters of such service. 4. It is further an admitted fact that, also there is no privity of contract between this Appellant and M/s MS of Romania, but under the Joint Venture Agreement, it is evident that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue stated that admittedly, there was no privity of contract between this Appellant and M/s MS of Romania. Thus, the Appellant has provided service to M/s KSE in India, who, in turn have provided the same service to M/s MS of Romania. Thus, in the facts and circumstances, Appellant cannot get the benefit of export of service under the Export of Service Rules, 2005. Learned AR also relies on the following rulings: a) Faqir Chand Gulati vs Uppal Agencies Pvt Ltd [2008 (12) STR 401 (SC)] b) CCE, Surat vs Neminath Fabrics Pvt Ltd [2010 (256) ELT 369 (Guj)] 8. Having considered the rival contentions, I find that the Appellant has provided services, being BAS, in Joint Venture or partnership, to M/s MS of Romania. As the service ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
