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TMI Blog2015 (2) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... rers by the person who has placed the order. The entire transaction in our considered opinion seems to be of only procurement of orders and the rendering of services, if any, by the appellant is towards the foreign or overseas manufacturers. In our view, this activity though culminates in supplies to Indian Company, cannot be considered as services provided in India. We are fortified in our view by the ratio of the Tribunal in the case of Vodafone Essar Cellular Ltd. (2013 (7) TMI 178 - CESTAT MUMBAI). When the service provided by a person in India is consumed and used by a person abroad, co-ordinate Bench relied upon the judgement of the Paul Merchants Ltd. [2012 (12) TMI 424 - CESTAT, DELHI (LB)]; interpreting provisions of export of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not accepted by the audit party and a show-cause notice dated 19/03/2009 was issued to the appellant directing them to show cause as to why the amount of service tax liability of ₹ 5,32,96,615/- being not demanded and recovered from them along with interest and also why penalties should not imposed on them under various sections. Appellant contested the show-cause notice on merits. The adjudicating authority after following the due process of law, did not accept the contentions raised by the appellant and confirmed the demand of service tax along with interest and imposed penalties under various sections. 3. The learned Counsel appearing on behalf of the appellant would take us through the entire show-cause notice and the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an companies and passing them on to the overseas manufacturers. It is his submission that the appellant has not disputed that all the activities undertaken and services provided are in relation to the sale of goods in India and the consideration has been received only for the services provided in India in respect of sale of goods in India. He would also draw our attention to the findings recorded by the adjudicating authority as to that the appellant was not only procuring the orders but they are also assembling and organizing and collects receivables from the clients. 5. In a rejoinder, the learned Counsel would submits that the findings recorded by the adjudicating authority as to the appellant supports assembling and organizing on imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny, cannot be considered as services provided in India. We are fortified in our view by the ratio of the Tribunal in the case of Vodafone Essar Cellular Ltd. (supra). 9. In this case we find that there was an agreement between the appellant and the foreign telecom service provider as per which the appellant had agreed to provide telecom services to the customers of foreign telecom service provider when he is in India and using the appellant telecom networks. Revenue held a view that the consideration for services rendered in India is taxable under Business Auxiliary Service. The Bench after considering the provisions of Export Service Rules and Board clarifications, and the decision of Microsoft Corporation (I) Pvt. Ltd. case held in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax are in accordance with the declaration of law by the Hon'ble Supreme Court. iv) Inasmuch as the appeal No. ST/828/2010 was not argued by both the sides, the same can be listed for final disposal even though issue involved is identical. v) Having held that services involved were export of services, the same are not liable to be sustained against the appellants. 10. In case of Paul Merchants Ltd. case (supra) there was a difference of opinion between the Hon'ble Member (Judicial) and the Hon'ble Member (Technical) which was referred to 3 rd Member; held in favour of the assessee and by a majority order it was held that: The point of difference as mentioned in Para 60 of the referral order has been answered by thir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to what constitutes the export or import of service was neither raised nor discussed in the abovementioned judgments of the Apex Court. As discussed in this order, the Export of Service Rules, 2005 are in accordance with the Apex Court's ruling in the above mentioned judgments that service tax is a value added tax, which in turn is a destination based consumption tax in the sense that it is levied on commercial activities, and it is not a charge on the business but a charge on the consumers. There is nothing in Export of Service Rules, 2005 which can be said to be contrary to the principle that a service not consumed in India is not be taxed in India. In yet another case of Microsoft Corporation (I) Pvt. Ltd., also ended up with a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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