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TMI Blog2012 (8) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... ant. Shri A.K. Prasad, Jt. CDR, for the Respondent. [Order per : S.K. Gaule, Member (T)]. Heard both sides. 2. The applicant filed this application for waiver of pre-deposit of Service Tax of Rs. 5,12,34,843/- and penalty of Rs. 5,30,00,000/- imposed under Section 78 and other penalties under Sections 76 and 77 of the Finance Act, 1994. On a sequel of case booked by Director General of Central Excise Intelligence (DGCEI), the demand of Service Tax was confirmed on account of money transfer services on behalf of Western Union Financial Services Inc. (WU in short) to a person in India and various penalties were imposed against the applicant. 3. The contention of the applicant is that financial services business relates to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d therefore, the services used in India are not correct. The contention of applicant is that ld. Commissioner has dropped the demand in case of advertising, promotion and marketing services of WU, although the promotion activities have (physically) been undertaken in India, the service is being received by WU outside India, hence, the applicant would be entitled to benefit under Export of Services Rules, 2005 and the same logic should apply to money transfer service as well. The applicant has also placed reliance on the illustration (iv) of the Board s Circular dated 24-2-2009, whereby it has been clarified that the relevant factor is the location of the service receiver and not the place of performance. The applicant has also made a feeble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is different from service of provision of service on behalf of a client. No part of this service was delivered to or used by anyone in India. Thus, a parallel cannot be drawn between the two types of services. The contention is that the reliance placed on Board s Circular dated 24-2-2009, is also misplaced, since, the circular clearly brings out that the service tax is a consumption based tax, and what is important is the location of service receiver. The illustration given in clause (iv) of the Circular relates to remittances by Financial Institutions, whereas in the present case, the remittance has come from an individual abroad to his relative in India. WU is not authorized to do any business or commercial transaction like banks or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as export services only if :- (a) the service is delivered outside India, (b) the service is used outside India, and (c) the payment for the service provided outside India is received in convertible foreign exchange. From the above it follows that service has to be provided to someone first, then it is to be delivered to someone and finally it has to be used by someone. It is pertinent to mention here that giving is complete only when someone takes it. Similarly, delivery is complete only when someone has received it, otherwise it is just throwing. The delivery in the instant case, is complete only when it is received by the recipient in India. Therefore, the service provided by the applicant would not be covered un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been done in India and service has been used in India as already discussed supra. As regards the limitation of time, the ld. Jt. CDR has drawn our attention to ld. Commissioner s findings in para 4.11 of the impugned order as to how the applicant suppressed the material facts and furnished the information only after the officers of DGCEI initiated the enquiry. Moreover the question of limitation is a question of fact and law, which would be considered at the time of deciding the appeal. We find that the applicant has not been able to make out prima facie case for total waiver of pre-deposit of Service Tax. The applicant has also not pleaded financial hardships. However, the learned Jt. CDR fairly conceded that out of the total demand o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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