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TMI Blog2014 (6) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod of time and this clause got omitted from 27-02-2010. There are large numbers of cases pending on this issue and there is also a difference of opinion between two Members of the Tribunal pending on this issue in the case of Microsoft Corporation as reported at [2011 (11) TMI 60 - CESTAT, NEW DELHI] which is yet to be resolved. Prima facie, it would appear that use outside India cannot be equated with performed outside India because the expression ‘performed outside India’ is already used in the case of services at Rule 3 (1) (ii) and when the Legislature is aware of one expression and if it is using a different expression in the same rules, the new expression has to be understood to be having a different meaning from what is alread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant has paid service tax on the entire amount received from the advertisers under the category of Broadcasting Agency . The definition of Broadcasting Agency under Section 65(16) and 65(105)(zk) have provisions under which the agent of a foreign broadcaster selling time slot also is considered as a broad casting agency and the service is to be taxed under section 65(105) (zk). Therefore, the applicant has to be considered as a broadcasting agency and they have discharged tax liability and therefore there cannot be any further tax liability on the same consideration because the commission which has been paid to them by the foreign broadcaster is from the total amount received by the foreign company on which tax is paid. The applicant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reverse charge mechanism as recorded in para 28 of the order. She submits that the issue here is whether the assessee is required to pay service tax on commission received from STAR FZ, Dubai. The agreement dated 1.5.2005 is reproduced in para 6.1 of the Order-in-Original. The compensation to be paid to the applicant as per the agreement is specified in Clause (E) of the agreement. This remuneration is basically based on expenses incurred by the applicant to discharge his obligations She says that the activity under this agreement is different from broadcasting activity which is done by the STAR FZ Dubai. It has nothing to do with the activity with the STAR FZ Dubai. The ambit of the impugned activity is canvassing of advertisement that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of taxable service in their capacity of branch office, subsidiary representative/agent. He submits that the present appellant is also similarly placed. 6. We have considered submissions of both sides. In the first place, we take note of the definition of broadcasting agency as under:- broadcasting agency or organisation means any agency or organisation engaged in providing service in relation to broadcasting in any manner and, in the case of a broadcasting agency or organisation, having its head office situated in any place outside India, includes its branch office or subsidiary or representative in India or any agent appointed in India or any person who acts on its behalf in any manner, engaged in the activity of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be considered to be exported. The question is whether in such a situation the service can be considered to be provided from India and used outside India purpose of Rule 3 (2) (a) of the Rules. There is no doubt that in this case the service is provided from India. The dispute is only about use outside India . On this issue, we note that the concept of Export of Service has evolved over a period of time and this clause got omitted from 27-02-2010. There are large numbers of cases pending on this issue and there is also a difference of opinion between two Members of the Tribunal pending on this issue in the case of Microsoft Corporation as reported at 2011-TIOL-1508-CESTAT-DEL which is yet to be resolved. Prima facie, it would appear that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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