2011 (9) TMI 759 - AT - Service Tax

Whether the service provider appellant in India getting rupee value being equivalent of commission amount of 5% in US shall be liable to service tax on the allegation of non-fulfillment of condition of Rule 3(1)(3) of Export Service Rules 2005 - There is no cogent evidence on record to find that the exporter had any office in India - The service provided by the Appellant to GMC is taxable under Section 65(105)(zzb) of the Finance Act 1994 and this service is covered by sub-rule (3) of Rule 3 as there is no dispute about the fact that it has been provided in relation to the business of the recipient located outside India - Held that instead of foreign exchange going out of India there is conservation of foreign exchange in India to the extent of commission earned by the service provider appellant in view of the arrangement made by the service recipient abroad in that behalf through Indian Railways - Appeal is allowed

Summary

Issues:
1. Whether the service provider in India is liable to service tax for receiving commission in rupees equivalent to 5% in US $.
2. Dispute over payment in convertible foreign exchange for exported taxable service.
3. Interpretation of Rule 3 of Export Service Rules, 2005 regarding conditions for export of taxable services.
4. Application of proviso to sub-rule (3) of Rule 3 in the absence of recipient's office in India.

Analysis:

1. The case revolves around the liability of a service provider in India to pay service tax on receiving a commission in rupees equivalent to 5% in US $. The Appellate Authority held that the appellant did not fulfill the conditions of Rule 3(ii)(i)(a) or Rule 3(ii)(i)(b) of Export Service Rules, 2005, and thus, cannot be considered to have exported taxable service liable to service tax.

2. The dispute arose when the Revenue contended that the service provider needed to receive payment in convertible foreign exchange, as per the show cause notice. The appellant had made a refund claim for exporting taxable service to a foreign entity, but the Revenue denied the refund on the grounds of non-receipt of payment in foreign exchange.

3. The Tribunal analyzed Rule 3 of Export of Services Rules, 2005, which defines the export of taxable services. It was established that the service provided by the appellant to the foreign entity was taxable under the Finance Act, 1994. The Tribunal emphasized that the conditions of the proviso to sub-rule (3) of Rule 3 did not apply since the foreign entity had no office or establishment in India.

4. The Tribunal highlighted that the conservation of foreign exchange in India, due to the payment arrangement made by the foreign recipient through Indian Railways, fulfilled the objective of export of service. As the foreign exchange that would have left India was conserved, the service provided by the appellant was considered an export of service under Rule 3(3) of the Export of Service Rules, making the appellant eligible for a refund of the service tax paid.

In conclusion, the Tribunal allowed the appeal, emphasizing the conservation of foreign exchange and the absence of the foreign entity's office in India as key factors in determining the service provider's liability for service tax on the commission received.