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TMI Blog2017 (7) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant. - ST/650/12 & ST/88240/13 - A/87759-87760/17/STB - Dated:- 8-3-2017 - Shri M V Ravindran, Member (Judicial) And Shri C J Mathew, Member (Technical) Ms Isha Shah, Advocate for Appellant Shri B Kumar Iyer, Superintendent (AR) for Respondent ORDER Per: CJ Mathew The appellant, M/s APM Terminals India (P) Ltd, is engaged by M/s AP Moller-Maersk A/s to outfit containers at the request of exporters who desire to equip these for carriage of garments on hangers without having to be packed in boxes. The original authority issued notices dated 28th September 2010, for the period from April 2005 to December 2006, and dated 16th October 2012, for the period from 2007-08 to 2011-12, demanding tax of ₹ 4,09, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of manufacture in section 2(f) of Central Excise Act, 1944 and, thereby, liable to tax as provider of 'business auxiliary service' defined in section 65(19) of Finance Act, 1944 and that, as the activity is not liable to Value Added Tax or Sales Tax, it is chargeable to tax under Finance Act, 1944. Penalties were also imposed under section 76, 77 and 78. 3. Before we proceed to examine the core of the dispute on taxability of the activity under section 65(105)(zzb) of Finance Act, 1994, a fundamental contention raised on behalf of appellant must be disposed off. We observe that two show cause notices have been issued and both have invoked the proviso to section 73(1) of Finance Act, 1994 extending the period of demand and to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ma Ice Factory v. Commissioner of Central Excise, Jaipur-I [2015 (37) STR 660 (Tri-Del)]. Learned Authorized Representative places reliance on the decision of the Tribunal in PSL Corrosion Control Services Ltd v. Commissioner of Central Excise Customs, Daman [2008 (12) STR 504 (Tri-Ahmed)] which has held '13. ....... As such, even if the appellants plea that the expression on behalf of their clients involves third party agreement is accepted, the same is satisfied in the present case. Admittedly, the contractors have to use powder epoxy coated bars in the construction of roads, bridges etc. Instead of doing the coating themselves the same is being done by the appellants on their behalf. As such, it can be safely concluded th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate does not carry much weight.' 5. In light of the above, the claim that activity on behalf of clients is not taxable when a new product does not come into existence will not sustain. We are therefore required to consider the specific circumstances in which the tax is sought to fastened on the appellant. 6. There is no dispute that the client is an overseas entity and that appellant is the provider of service. The notices have sought classification of the service under section 65(105)(zzb) of Finance Act, 1994 which is covered by rule 3(iii) of Export of Service Rules, 2005 and hence, under section 93 of Finance Act, 1994, is exempted from levy if recipient of service is located outside India. The consideration received from or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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