2014 (2) TMI 908 - AT - Service Tax

Waiver of pre-deposit - Export of services or not - classification of service - taxability of the margin on Letters of Credit retained by the applicant - commission agent services - Held that - We are prima facie of the view that consideration in question was for services rendered by applicant to the foreign buyers and not to the vendors and since the consideration had been realized in foreign exchange by the applicant. The applicant was engaged in promotion of exporting of goods and since the general policy on taxation is to avoid taxation on export activities calling for pre-deposit to hear this appeal is not justified - stay granted.

Issues Involved:
1. Change of respondent's name in the cause title.
2. Taxability of the margin on Letters of Credit retained by the applicant.
3. Classification of service under "Business Auxiliary Service" or "Business Support Service".
4. Determination of whether the service is exported.
5. Waiver of pre-deposit of dues for admission of appeals.

Issue-Wise Detailed Analysis:

1. Change of Respondent's Name in the Cause Title:
The application by Revenue to change the respondent's name from "Commissioner of Central Excise, Chennai-III" to "Commissioner of Service Tax, Chennai" was allowed. The Registry was directed to amend the cause title accordingly in all further proceedings.

2. Taxability of the Margin on Letters of Credit Retained by the Applicant:
The applicant engaged in identifying vendors for supplying garments to foreign buyers and earned commission by retaining a margin on transferrable letters of credit. Revenue issued Show Cause Notices demanding tax on these amounts, considering them as consideration for Business Auxiliary Service. Revenue argued that the service was delivered in India and not exported, thereby raising demands for various periods along with interest and penalties.

3. Classification of Service under "Business Auxiliary Service" or "Business Support Service":
The applicant contended that the service should be classified under "Business Support Service" rather than "Business Auxiliary Service". They relied on previous Tribunal decisions in their own case and a group company's case. The Tribunal noted that the classification was crucial for determining the applicable Export of Services Rules.

4. Determination of Whether the Service is Exported:
The applicant argued that the service was exported since it was provided to foreign buyers, and consideration was received in foreign exchange, satisfying the conditions of Export of Service Rules, 2005. The Tribunal considered the location of the service recipient as per Rule 3(1)(iii) of the Export of Services Rules. The Tribunal noted that the service was rendered to the foreign buyer, and there was no contract with local vendors. The invoices and transactions supported the applicant's claim that the service was for the foreign buyer, and the consideration was received in foreign exchange.

5. Waiver of Pre-Deposit of Dues for Admission of Appeals:
The Tribunal considered the submissions and noted that the service was provided to the foreign buyer, and the consideration was received in foreign exchange. The Tribunal observed that the general policy is to avoid taxation on export activities. Therefore, it was not justified to call for a pre-deposit to hear the appeal. The Tribunal waived the pre-deposit of dues and granted a stay on the collection of such dues during the pendency of the appeals.

Conclusion:
The Tribunal allowed the change of respondent's name and waived the pre-deposit of dues, granting a stay on the collection of such dues during the pendency of the appeals. The Tribunal prima facie found that the service was rendered to the foreign buyer, and the consideration was received in foreign exchange, supporting the applicant's claim of export of service.

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