TMI Blog2024 (3) TMI 1287X X X X Extracts X X X X X X X X Extracts X X X X ..... ted Versus Commissioner of Central Excise ST, Surat-II [ 2023 (4) TMI 828 - CESTAT AHMEDABAD ] in the Appellant s own case where it was held that the service of the appellant in present case being absolutely identical, under the same set of facts, it amounts to Export of Service hence it is not liable to service tax. Accordingly, the demand on the Export of Service i.e. Business Auxiliary Service is not sustainable hence the same is set-aside. The services have been provided by the Appellant which have been received outside India thereby establishing that the said services have been exported. The issue is no longer res-integra. The impugned order set aside - appeal allowed. - HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR And HON'BLE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on business realized and on prospective customers etc. Against such services the appellant received Commission in Convertible foreign exchange. He has relied on the clarification issued by the Board vide Circular No. 111/5/2009 ST dated 24.02.2009 that states that the relevant factor is the location is the service receiver and not the place of performance which in the present case is the location of recipients being outside India therefore it when services have been exported, service tax liability does not arise. Without prejudice to above he submits that the Appellant fulfills conditions as prescribed under Rule 6A of the Service Tax Rules, 1994 including that enumerated under clause (d) where in the present case the recipients of the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd marketing provided outside India and commission thereof received in India in foreign exchange, we find that since the recipient of service is located outside India and the payment of commission against said service is received in India, service clearly falls under the category of Export of Service in terms of Rule 3(1) of Export of Service Rules, which is reproduced below:- Export of taxable service. 3. (1) Export of taxable services shall, in relation to taxable services (i) specified in sub- clauses (d), (m), (p), (q), (v), (zzq), (zzza), (zzzb), (zzzc), (zzzh), (zzzr), (zzzy), (zzzz), (zzzza) (zzzzm) of clause (105) of section 65 of the Act, be provision of such services as are provided in relation to an immovable property situated ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in relation to business or commerce, be provision of such services to a recipient located outside India and when provided otherwise, be provision of such services to a recipient located outside India at the time of provision of such service: Provided that where such recipient has commercial establishment or any office relating thereto, in India, such taxable services provided shall be treated as export of service only when order for provision of such service is made from any of his commercial establishment or office located outside India: Provided further that where the taxable service referred to in sub-clause (zzzzj) of clause (105) of section 65 of the Act is provided to a recipient located outside India, then such taxable service sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Tribunal in the case of Yamazaki Mazak India Pvt. Limited (supra) wherein after considering various decisions, the Tribunal has observed as follows:- 54. In view of the above, the difference of opinion on various points is resolved as under : (i) That the Business Auxiliary Services of promotion of market in India for foreign principal made in terms of agreement dated 1-7-2005 amount to Export of Services and the Hon ble Supreme Court decision in the case of State of Kerala and Others v. The Cochin Coal Company Ltd. - 1961 (12) STC 1 (S.C.) as also Burmah Shell Oil Storage and Distributing Co. of India Ltd. v. Commercial Tax Officers [1960 (11) STC 764] explaining the meaning of export is not relevant inasmuch as the same deals with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Business Auxiliary Service is not sustainable hence the same is set-aside. 6. As regards the demand of Rs. 23,67,163/- related to commission paid to the foreign based agent towards the service of sales promotion and marketing received by the appellant, we find that there is no dispute that the receipt of service from the service provider located outside India and the recipient of service is in India, the appellant is liable to pay service tax under reverse charge mechanism in terms of Section 66A of the Finance Act, 1994. The appellant up to 30.09.2009 paid service tax along with interest. As regard the balance service tax amount for the period 01.10.2009 onwards, the appellant claimed exemption Notification No. 18/2009-ST dated 07.07.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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