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2018 (1) TMI 218 - HC - Service TaxCommission received in Foreign Currency for the services rendered in India - export of services or not? - Whether a service not being delivered outside India and not used outside India can be termed as export in violation of provisions of Export of Service Rules, 2005 and whose effective use and enjoyment was in India, in terms of the Board Circular No.141/10/2011-ITU dated 13.05.2011? Held that - there is no branch of the company with which the assessee has done his work and merely because subsidiary company has a Branch in India will not amount to branch of company with which the assessee has entered into a contract. The assessee has nothing to do with the subsidiary company - the contention that clause (3) of the Export Rules will come into operation, in our considered opinion, the language used wholly or subsidiary company having branch in India will not disentitle the assessee from benefit, therefore, he is not required to make payment of tax and he will be entitled for exemption. Appeal dismissed - decided against Revenue.
Issues Involved:
1. Whether the service provided by the assessee qualifies as export under the Export of Service Rules, 2005. 2. Interpretation of the term "used outside India" as per the Export of Service Rules, 2005. 3. Applicability of various judicial precedents and circulars issued by the Ministry of Finance. 4. Determination of the place of provision and use of service for tax exemption purposes. Detailed Analysis: Issue 1: Whether the service provided by the assessee qualifies as export under the Export of Service Rules, 2005. The appellant challenged the Tribunal’s order allowing the assessee’s appeal, questioning whether services rendered in India but paid for in foreign currency could be considered as export. The facts revealed that the assessee, a commission agent, facilitated sales for foreign companies within India and received commissions in foreign currency. The original authority observed that the assessee promoted sales in India for foreign companies and received commissions from payments made by Indian buyers to foreign sellers. The service cycle began and ended in India, thus not qualifying as export for tax exemption. The Commissioner (Appeal) upheld this view, noting that services performed in India did not meet the criteria of being delivered and used outside India. Issue 2: Interpretation of the term "used outside India" as per the Export of Service Rules, 2005. The Tribunal found that the commission received for procuring orders from Indian buyers for foreign suppliers met the criteria for export of services, referencing the CESTAT decision in Paul Merchants and the Supreme Court judgment in J.B. Boda. The Tribunal concluded that the commission paid by Indian buyers on behalf of foreign suppliers could be deemed as paid in foreign exchange, thus simplifying the procedure without affecting foreign exchange implications. The Tribunal ruled in favor of the assessee, finding the services provided as export under the Export of Service Rules, 2005. Issue 3: Applicability of various judicial precedents and circulars issued by the Ministry of Finance. The appellant referenced multiple judicial precedents and circulars, including the Ministry of Finance circulars dated 24th February 2009 and 13th May 2011, which clarified the interpretation of "used outside India." The appellant argued that the effective use and enjoyment of services should be outside India for them to qualify as export. The appellant cited the Supreme Court decision in All India Federation of Tax Practitioners, emphasizing that service tax is a value-added tax levied on services provided within the country. The appellant also referenced decisions from the Mumbai Tribunal and other cases where services rendered in India for foreign clients were deemed not to qualify as export. Issue 4: Determination of the place of provision and use of service for tax exemption purposes. The Tribunal’s decision was challenged on the grounds that the services provided by the assessee were used in India, thus not qualifying as export. The appellant highlighted that the assessee’s services, such as promotion and marketing of foreign products in India, were performed and used within India. The Tribunal’s reliance on the Paul Merchants decision was contested, noting that the matter was pending before the Punjab and Haryana High Court. The appellant also referenced the Supreme Court decision in Garware Nylons, emphasizing the burden of proof on taxing authorities to show that a service is taxable. Conclusion: The High Court concluded that the assessee’s services did not qualify as export under the Export of Service Rules, 2005, as they were performed and used in India. The court dismissed the appeal, upholding the Tribunal’s decision in favor of the assessee, and ruled that the assessee was entitled to exemption from service tax. The court emphasized that the presence of a subsidiary company’s branch in India did not affect the assessee’s entitlement to tax exemption.
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