2015 (5) TMI 739 - AT - Service Tax

Export of service or not - Business Auxiliary Services or export transaction - Held that - service recipient is situated abroad and the payments for the services rendered was received in convertible foreign exchange and the service has been delivered to a person situated abroad and such services were provided from India and used outside India. Thus all the conditions of export have been satisfied and therefore, we have no hesitation in concluding that the activity involved in the present case is one of exports which is not taxable. Even as per the place of Provision of Service Rules 2012, it is the place of service recipient which determines where the service has been rendered. In the present case, the service recipient is located outside India and therefore, the service has been rendered outside India. In other words, it is a export transaction. - decisions of this Tribunal in the case of Gap International Sourcing (India) Pvt. Ltd. 2014 (3) TMI 696 - CESTAT NEW DELHI Paul Merchants Ltd. 2012 (12) TMI 424 - CESTAT, DELHI (LB) , Microsoft Corporation India Pvt. Ltd. 2014 (10) TMI 200 - CESTAT NEW DELHI (LB) , etc. would squarely apply - Decided in favour of assessee.

Summary

Issues:
Service tax demand on services rendered by the appellant to their parent organization under the category of "Business Auxiliary Services" for the period 2008-09 & 2009-2010.

Analysis:
The appeal challenged the Order-in-Original confirming a service tax demand of Rs. 9,12,11,220/- and penalties imposed under the Finance Act, 1994. The appellant, M/s. Atlas Copco (I) Ltd., entered into an agency agreement with their parent organization in Belgium to promote sales in India. The department contended that since orders were procured from Indian buyers, service tax was applicable under "Business Auxiliary Services." The appellant argued that the activity constituted exports under the Export of Service Rules, 2005, citing decisions like Microsoft Corporation (I) (P) Ltd. vs. CST, New Delhi. The Revenue asserted that services were rendered in India, relying on a Tribunal interim order.

The Tribunal analyzed the case, considering previous decisions. Referring to Microsoft Corporation (I) (P) Ltd., Menon Associates, and Gap International Sourcing (India) Pvt. Ltd., the Tribunal concluded that services provided to a foreign recipient, with payments in convertible foreign exchange, constituted exports. The Tribunal emphasized that the service recipient's location determines the place of service provision, confirming that the service was rendered outside India, thus an export transaction. Consequently, the Tribunal set aside the impugned order, allowing the appeal.

In conclusion, the Tribunal held that the services provided by the appellant to their parent organization constituted exports and were not taxable. The decision was based on established principles under the Export of Service Rules, 2005, and previous Tribunal judgments. The Tribunal emphasized the importance of payment in convertible foreign exchange and the location of the service recipient in determining the taxability of services. The appellant's contention that the activity amounted to exports was upheld, leading to the appeal being allowed and the impugned order set aside.