9911796707
TMI Blog2025 (5) TMI 1371X X X X Extracts X X X X X X X X Extracts X X X X ..... llant obtained voluntary registration effective from 01.10.2014. Business support services are of the nature of "intermediary services in relation to goods", which became taxable with effect from 01.10.2014 with the amendment in the Place of Provisions of Services Rules, 2012 POPS Rules, 2012; hence the Appellant started paying tax with effect from 01.10.2014. Authorities below taxed the intermediary services in relation to goods provided by the Appellant for the period from 01.04.2014 to 30.09.2014. For the period 2014-15 to 2016-17, Appellant was also providing professional services in the nature of making of designs and development. The Appellant used to receive broad description of various products from the foreign customers; and based upon that description, the Appellant used to make two to three sample products, which were subsequently dispatched to the foreign customers. The Authorities below denied the claim of export of these services. Based upon the information received from the Income Tax Department, the Authorities below observed that the Appellant had not discharged its service tax Liabilities fully for the period from F.Y. 2014-15 to F.Y. 2016-17. Hence, letter dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23. Earlier, audit of the Appellant was concluded for the period in dispute by the Service Tax Authorities. Letter dated 12.07.2019 was issued by the Service Tax Department for conducting Audit for the period from November, 2014 to June, 2017. Appellant filed replies and furnished documents as asked by the Audit Team, including those related to intermediary services and design and development services provided by him. The Appellant also paid additional service tax as detected by the Audit Team. On 30.01.2020, closure report of Service Tax Audit was issued. Aggrieved against the Appellate order dated 09.01.2023, the Appellant has filed this appeal. 5. We have heard Shri Rakesh Garg, Advocate and Shri Shubham Agarwal, Advocate for the Appellant and Shri Santosh Kumar learned Authorized Representative for the revenue. 6. The Appellant stated that following three issues were rightly identified in Para 8 of the impugned order dated 09.01.2023 by the Ld. Commissioner, Appeals:- (1) Whether Service Tax was payable on the intermediary services provided by the Appellant prior to 01.10.2014. (2) Whether design and development supplied and Business Auxiliary services provided to oversea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice (hereinafter called the 'main' service) or a supply of goods, between two or more persons, but does not include a person who provides the main service or supplies the goods on his account (v) Since the place of provision of intermediary services in relation to goods was the location of the recipient (i.e. outside India in the present case) upto 30.09.2014, hence these services were of the nature of "export of service" in terms of Rule 3 of the Place of Provision of Services Rules, 2012. (vi) The Appellant placed reliance upon the case of Chevron Phillips Chemicals India Pvt. Ltd. vs. Commissioner of CGST & Central Excise, Mumbai East - 2019 (12) TMI 1066 (CESTAT-Mumbai), where the Tribunal noted that the definition of 'intermediary' was amended on 01.10.2014 to include 'goods'. For the period before this amendment, the Tribunal held that the Appellant could not be considered intermediary as the definition did not encompass goods. In Para 16 of the Judgment, the Tribunal observed as under: - "16. There is merit in the contention of the Appellant that since "goods" was not covered under the scope of definition of "intermediary", therefore, for the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vi Solutions India Pvt. Ltd. vs. Commissioner of CGST, Gurgaon-I - 2024 (6) TMI 187 (CESTAT- Chandigarh). 9. In relation to point No.2 of Para 3.2 pertaining to taxability of designing services, the Appellant submits as follows:- (i) Appellant is also engaged in providing Design and Development services to the foreign customers. These services are provided by the Appellant and his team; and he is not engaged as agent or intermediary in arranging or facilitating these services. The Appellant also explained the process of provision of design service, as under: - - The Appellant used to receive broad description of various sample products from the foreign customers. Based upon that description, the Appellant used to make design of the product on computer software through its own team - On approval of pictures of the designs, the Appellant would make two or three sample products through its own team or its supporting manufacturers. These sample products were subsequently dispatched to the foreign customers. - Role of the Appellant completed once the sample product was delivered to the foreign customers. Further order for supplying goods of the sample products was at the discre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efining the term "export of services", are satisfied. 10. In relation to point No.3 of Para 3.2 pertaining to invoking of extended period of limitation, Learned Advocate appearing on behalf of the Appellant submits as follows:- (i) The Authorities have invoked the extended period of limitation under proviso to Section 73(1) of the Finance Act, 1994, in spite of the fact that Audit of the business affairs of the Appellant was already concluded on 30.01.2020 by the Service Tax Department and the Department had full knowledge of the facts. Reliance was placed on following judgments: - Anand NishiKawa Co. Ltd. vs. CCE, Appeal, Meerut [2005 (188) E.L.T. 149 (SC)] Bharathi Cement Corporation (P) Limited vs. CCT [2019 (3) TMI 1423 (CESTAT-Hyd.)] Religare Technova Global Solutions Limited vs. CCE [2020 (11) TMI 753 (CESTAT-Bang.)] Khoday Glass Company vs. CCT [2019 (7) TMI 163 (CESTAT-Bang.)] (ii) Appellant further stated that the Hon'ble Courts in number of cases have held that extended period of limitation can be invoked only if all the conditions specified in the concerned provision are satisfied and when there is an intention to evade payment of duty; i.e. it is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
