2017 (6) TMI 58 - AT - Service Tax

Export of service - reverse charge - Business Auxiliary Service - Whether Business Auxilliary Services (BAS) rendered by the assessee to their foreign client qualifies as export of service? - Held that - the subject matter is covered by the Tribunal s decisions in the cases of M/s. Gap International Sourcing (India) Pvt. Ltd. vs. CST 2014 (3) TMI 696 - CESTAT NEW DELHI , where it was held that these services have to be treated as delivered outside India and used outside India and since payment for the service has been received in convertible foreign exchange, the same would have to be treated as exported out of India - appeal allowed. Whether hiring-out industrial endoscopes would qualify as supply of tangible goods for use service or not? - Held that - CBEC Circular No. 334/1/2008 TRU dated 29.02.2008 clarifies that wherever supply of tangible goods for use involves transfer of both possession and control it is deemed sale leviable to VAT /Sales Tax, then the said activity would not be liable to service tax under supply of tangible goods for use service . The circular mentions, that if the item/ instrument has been supplied for use but without any legal right of its possession and effective control, then the use of the item is to be treated as service and not the sale and in that case service tax will be liable to be paid under the category of supply of tangible goods for use service - the subject transactions are to be verified by the original authority, whom we are remanding this matter, then only it can be determined whether there is a service or a sale . Appeal allowed - part matter decided in favor of assessee and part matter on remand.

Issues Involved:
1. Whether Business Auxiliary Services (BAS) rendered by the assessee to their foreign client qualifies as export of service.
2. Whether hiring-out industrial endoscopes would qualify as “supply of tangible goods for use service” or not.

Issue-wise Detailed Analysis:

1. Whether Business Auxiliary Services (BAS) rendered by the assessee to their foreign client qualifies as export of service:

The appellant, M/s. J. Mitra and Company Pvt. Ltd., received commission income from a foreign client for rendering marketing services in India. The appellant treated this income as "export of services" and did not pay service tax. However, the Revenue argued that these services fall under "Business Auxiliary Service" (BAS) as defined in Section 65 (19) (i) read with Section 65 (105) (zzb) of the Finance Act, 1994, and are liable to service tax.

The Tribunal noted that the service provided by the appellant was consumed by the foreign client, M/s. Olympus Singapore PTE Ltd., based in Singapore. The Tribunal referenced the cases of Paul Merchants Limited vs. Commissioner and M/s. GAP International Sourcing (India) Pvt. Ltd. vs. CST, which clarified that services provided on the instructions of a person located outside India for use in their business, and paid for in convertible foreign exchange, are considered exported if the service recipient is located abroad and has no branch or establishment in India.

Following these precedents, the Tribunal concluded that the services rendered by the appellant qualify as export of services since they were consumed by the foreign client outside India. Consequently, the impugned order was set aside, and the appeal was allowed with consequential benefits.

2. Whether hiring-out industrial endoscopes would qualify as “supply of tangible goods for use service” or not:

The appellant also received hiring charges for renting out industrial endoscopes. The Revenue argued that this activity falls under "supply of tangible goods for use service" as defined under Section 65 (105) (zzzzc) of the Finance Act, 1994, and is liable to service tax.

During the hearing, it was submitted that the endoscopes were sometimes provided with an operator, and sometimes without. The Tribunal emphasized that if effective control and possession of the endoscopes were transferred to the customer, it would be considered a sale and not subject to service tax. However, if the endoscopes were provided with an operator, retaining control and possession with the appellant, it would be considered a service.

The Tribunal referred to CBEC Circular No.334/1/2008 TRU dated 29.02.2008, which clarifies that transactions involving the supply of tangible goods without transferring possession and control are treated as services. Additionally, the Supreme Court's decision in BSNL vs. Union of India was cited, which outlined the attributes necessary for a transaction to be considered a transfer of the right to use goods.

The Tribunal remanded the matter to the original adjudicating authority to examine each transaction independently to determine whether it constitutes a sale or a service. The original authority was instructed to decide the matter after providing the appellant with an opportunity for a personal hearing and submission of documentary evidence.

Conclusion:

The impugned order was set aside, and the appeal was allowed in the above terms. The matter regarding the hiring of endoscopes was remanded to the original adjudicating authority for a fresh decision based on the specific details of each transaction.

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