2010 (8) TMI 622 - AT - Service Tax

Refund - Business Auxiliary Services(BAS) - Notification No. 6/1999-S.T., dated 9-4-1999 - Circular No. 56/5/2003-S.T., dated 25-4-2003 - assessee was not a commission agent of MAPAL, Germany to qualify for exemption from payment of Service Tax for the period 1-7-2003 to 9-7-2004 - there is no dispute that during the material period, the appellant promoted sale of precision tools manufactured by MAPAL, Germany and received consideration in convertible foreign exchange - since the assessee received consideration in foreign exchange, the impugned services continued to be exempt during the period 1-3-2003 to 20-11-2003 - Appeal is allowed

Summary

Issues:
- Whether the services rendered by the appellant qualify as export of services and are exempt from Service Tax.
- Whether the appellant is considered a commission agent and eligible for exemption from Service Tax.
- Whether the impugned order rejecting the refund claims is sustainable.

Analysis:

Issue 1:
The appellant, engaged in promoting the sale of precision tools manufactured by a German company, received consideration in convertible foreign exchange. The Tribunal analyzed relevant notifications and circulars to determine the taxability of the services provided. It was established that during the material period, the services were exempt from Service Tax as consideration was received in foreign exchange. Additionally, for a later period, services provided to a recipient located outside India were considered as services exported, further supported by legal precedents like ABS India Ltd. and Blue Star Ltd. The Tribunal concluded that the impugned services were indeed exempt from Service Tax, as per the Export of Services Rules, 2005.

Issue 2:
The Tribunal examined whether the appellant qualified as a commission agent as per Notification No. 13/2003-S.T. The revenue did not dispute that the appellant fell under this definition. Consequently, for the relevant period, the services rendered by the appellant could not be held liable for Service Tax. The Tribunal also noted that since the appellant received consideration in foreign exchange, the services remained exempt from tax. The legal position was further supported by Circular No. 111/5/09-S.T. and relevant case laws, reinforcing the appellant's eligibility for exemption as a commission agent.

Issue 3:
The impugned order rejecting the refund claims was challenged by the appellant. The Tribunal, after considering the legal provisions, circulars, and case laws cited by the appellant, found the order unsustainable. The Tribunal set aside the impugned order and allowed the appeal, emphasizing the legal position evident from the case laws presented by the appellant. The decision was based on the clear exemption provisions applicable to the services provided by the appellant during the relevant periods.

In conclusion, the Tribunal ruled in favor of the appellant, holding that the services provided qualified as export of services and were exempt from Service Tax. The appellant's status as a commission agent further supported their eligibility for exemption. The impugned order rejecting the refund claims was deemed unsustainable in light of the legal position and relevant case laws, leading to the appeal being allowed by the Tribunal.