2018 (4) TMI 1239 - AT - Service Tax

C&F agency service - Place of provision of service - the said service was received by the appellant from foreign agents - reverse charge mechanism - POPOS Rules - Held that - since services have been wholly performed outside India, the activity will not be exigible to service tax by virtue of Rule 3 (ii) of the Taxation of Services (Provided from Outside India and Received in India) Rules, 2006 - demand do not sustain - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Tax liability on clearing and forwarding services received from a foreign service provider.
2. Interpretation of Rule 3 (ii) of the Taxation of Services Rules, 2006.
3. Applicability of service tax on services performed outside India.
4. Validity of show cause notices and penalties imposed.

Analysis:

Issue 1: Tax liability on clearing and forwarding services
The appellants, manufacturers and exporters of Gherkins, received clearing and forwarding services in France from a foreign service provider. The Department alleged that the service was commenced in India by dispatching the goods and sold in a country other than India, requiring the appellants to pay service tax under Rule 2 (1) (d) (iv) of the Service Tax Rules,1994. The original authority confirmed the tax liability and penalties, which was upheld partially by the Commissioner (Appeals). The appellants contested that the entire activity was conducted outside India, making it non-exigible to service tax.

Issue 2: Interpretation of Rule 3 (ii) of the Taxation of Services Rules, 2006
The appellants argued that Rule 3 (ii) of the Taxation of Services Rules, 2006, states that there cannot be any liability for services wholly performed outside India. They cited relevant case laws to support their claim, emphasizing that the C & F services were entirely carried out outside India, aligning with the legal provisions.

Issue 3: Applicability of service tax on services performed outside India
The Tribunal acknowledged that the services were wholly performed outside India, as per Rule 3 (ii) of the Taxation of Services Rules, 2006. The Tribunal agreed with the appellants' contention that such activities are not subject to service tax, citing precedents that supported this interpretation. Consequently, the impugned order confirming tax liability was set aside, and the appeal was allowed.

Issue 4: Validity of show cause notices and penalties imposed
The Tribunal, after hearing both sides and examining the facts, found in favor of the appellants. It concluded that since the services were performed entirely outside India, the tax liability imposed was not sustainable. The Tribunal set aside the impugned order and allowed the appeal, providing consequential relief as per law. The decision highlighted the importance of considering the place of performance of services in determining service tax liability.

This detailed analysis of the judgment covers the key issues involved, the arguments presented by both parties, the legal provisions applied, and the final decision rendered by the Tribunal.