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TMI Blog2013 (3) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... Profit & Loss account, cannot be held to be a valid reason to reject the appellant’s plea of the commission having been earned from the services provided by them to a foreign client. - Demand set aside - Decided in favor of assessee. - ST/375/2010 - A/1063/2011-WZB/AHD - Dated:- 13-6-2011 - Ms. Archana Wadhwa and Dr. P. Babu, JJ. Shri M. A. Patel, Consultant, for the Appellant. Shri R. S. Sangia, SDR, for the Respondent. ORDER After dispensing with the condition of pre-deposit of Rs. 1,02,378/- (Rupees One Lakh, Two Thousands, Three Hundreds and Seventy Eight Only), confirmed as Service Tax against the applicant and penalty of Rs. 2,04,756/- (Rupees Two Lakhs, Four Thousands, Seven Hundreds and Fifty Six Only) imposed upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfirmed the amount of Service Tax under Section 73(1) of Finance Act, 1994 along with interest thereon under Section 75 of the Act and also imposed penalty under Section 76 and 78 of the Act. 3. Being aggrieved with the order passed by Assistant Commissioner, the appellants preferred an appeal before Commissioner (Appeals). The appellants contended that the amount in question is the commission amount received by them in foreign currency from the foreign client for providing the services for sale of foreign goods in India and as per the provisions of Export of Service Rules, 2005, the services provided to foreign clients are exempted from Service Tax; that they had produced documentary evidence about services provided to foreign company a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion the value of exempted services and therefore, it was not mandatory to mention the same in the return; that in absence of any documentary evidence by way of recording statement or other evidence the invocation of longer period merely on assumptions and presumptions is not permitted by law; that the issue is about interpretation of the statute and therefore, heavy penalty imposed is not sustainable in law. 4. The Commissioner (Appeals) vide his impugned order rejected the appeal on the ground that the appellants in their Profit Loss account have shown income as commission only and there is no bifurcation of the domestic and export commission. He has also observed that the appellants, on one hand, have stated that the differential a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not the place of performance. The phrase used inside India is to be interpreted to be that the benefit of the service should accrue outside India . As such it stands observed that it is possible that export of service made at a place even when all the relevant activities take place in India so long as the benefits of these services accrue outside India. Where the benefit in terms of promotion of a business of a foreign company accrued, the fact that the place of performance was in India the same would not be taxable. The legal position also not stand disputed by the Revenue. 8. In view of the above, we set aside the impugned order and allow the appeal with consequential relief to the appellant. 9. Stay Petition as also appeal gets ..... X X X X Extracts X X X X X X X X Extracts X X X X
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