2014 (8) TMI 234 - AT - Service Tax

Waiver of predeposit of tax - Export of services - Business Auxiliary Services - commission agent - identification of the supplier of sports goods in India - Held that - agreement as referred by the learned AR on behalf of Revenue is in between the Decathalon SA, France and the applicant as a principal and agent. Hence, prima facie, it cannot be accepted that the supplier performed the agreement - We have also noticed that the Board Circular dated 24.2.2009 had categorically clarified that in respect of the clause (III) of Rule 3(1) of Export of Service Rules, the relevant factor is the location of the service receiver and not the place of performance. It is also clarified that the export of service may take place even when all the relevant activities takes place in India so long as the benefits of these services accrued outside India - prima facie, there is no dispute that the benefit of this service accrued to Decathalon SA, France. In view of that, prima facie, we find that the applicant made out a strong case for waiver of predeposit of entire dues. - stay granted.

Summary

Issues:
- Whether the services provided by the applicant qualify as export of service under Rule 3(1) of Export of Service Rules.
- Whether the applicant is liable to pay service tax of &8377; 9,38,46,229/- along with interest and penalty for the period October 2006 to August 2011.

Analysis:
1. Issue 1 - Export of Service Qualification:
The applicant sought waiver of predeposit of tax amounting to &8377; 9,38,46,229/-, contending that the services rendered to Decathalon SA, France should be considered as export of service under Rule 3(1) of Export of Service Rules. The adjudicating authority disagreed, stating the services were mainly rendered to the supplier, not Decathalon SA, France. The applicant argued that the recipient being outside India qualifies as export of service, citing relevant Tribunal decisions and Circular No. 111/05/2009-ST. The Revenue contended that the supplier was the beneficiary based on the agreement, emphasizing the use and enjoyment of service over benefit accrual. However, the Tribunal found that the services facilitated Decathalon SA, France to directly purchase from Indian suppliers, with payments made directly by Decathalon SA, France to the suppliers. The Tribunal noted that the benefit of the service accrued outside India to Decathalon SA, France, leading to a prima facie acceptance of the export of service qualification. The Tribunal granted waiver of predeposit and stayed recovery during the appeal, citing the location of the service receiver as the relevant factor.

2. Issue 2 - Liability for Service Tax:
The dispute also involved the liability of the applicant to pay service tax, interest, and penalty for the period between October 2006 to August 2011. The Revenue argued that the service was primarily for the suppliers, not Decathalon SA, France, based on the agreement and the nature of service enjoyment. However, the Tribunal found that the services facilitated direct purchases by Decathalon SA, France from Indian suppliers, with payments made directly to the suppliers. The Tribunal's analysis focused on the location of the service receiver and the accrual of benefits outside India, leading to a prima facie acceptance of the applicant's case for waiver of predeposit and stay of recovery during the appeal process. The Tribunal directed the appeal to be listed for a hearing, considering the Revenue's submissions.

In conclusion, the Tribunal's detailed analysis and interpretation of the service agreement, relevant circulars, and Tribunal decisions led to the grant of waiver of predeposit and stay of recovery in favor of the applicant, emphasizing the location of the service receiver and the accrual of benefits outside India as crucial factors in determining the export of service qualification.