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TMI Blog2018 (7) TMI 919X X X X Extracts X X X X X X X X Extracts X X X X ..... ces in different countries to promote its goods and to liaison with the local authorities in such countries. The salaries of the employees working at the representative offices are remitted by the appellant to the representative offices for disbursing the same to the employees working therein. The appellant also reimburses the other expenses incurred by the representative offices for their operations. The Department entertained a view that the expenses incurred by the appellant for the maintenance of the offices abroad are liable to Service Tax on reverse charge basis. The show cause notice dated 25.04.2014 was issued proposing to levy the Service Tax which resulted in the issue of the impugned order confirming the demand of the Service Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own branch offices for the purposes of reimbursing the expenditure involved in running such branch offices. 5. The ld. Advocate explained the comparative provisions of pre-2012 and post 2012 and argued that the Section 65 B (44) as well as Explanation 3(b) and Explanation 4 (all of which were inserted w.e.f. 01.07.2012) are pari matera for the provisions of Section 66A (2) read with Explanation 1, which were prevalent prior to 01.07.2012. Finally, he submitted that the decision of the Tribunal (supra) will be equivalently applicable for the period even after introduction of the negative list based assessment. 6. The ld. Advocate also submitted that the substantial part of the Service Tax, which has been ordered for payment vide the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice has made reference to Section 65 B (44) read with the Explanation 3 (b) as well as Explanation 4. For ready reference and proper appreciation, we reproduce below the old and new legal provisions, side by side. Pre-2012 Amendment Post-2012 Amendment Section 66A(2) - "Whereas person is carrying on a business through a permanent establishment in India and through another permanent establishment in a country other than India, such permanent establishments shall be treated as separate persons for the purposes of this Section." Explanation I - A person carrying on a business though a branch or agency in any country shall be treated as having a business establishment in that country. Section 65B (44) - "service" .. Explanation 3 (b) A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a service is provided and consumed in India or abroad. It is an accepted legal position that one can not provide service to one's own self. If the 'permanent establishment' of the appellant abroad is treated as a service provider to its own head office in India then it will amount to charging service tax for an activity provided to one's own self. Similarly placed branches of the appellant undertaking similar activities in India will not be held so. Therefore, a comprehensive reading of Section 66A of the Finance Act, 1994, a permanent establishment situated abroad as a 'separate person', will be understood to have been prescribed only to determine the provision of service whether in India or out of India, Theoreticall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view that Section 65 B (44) read with the relevant Explanations are peremateria to the Section 66A (2) read with Explanation. Consequently, the finding of the Tribunal needs no modification even for the period after 01.07.2012. Hence, there is no justification to demand Service Tax on the amounts paid by the appellant to their branch office towards reimbursement of their expenses. 12. On a perusal of the impugned order, we find that the Commissioner has failed to discuss the issue in the light of the provisions, which have been included in the statute w.e.f. 01.07.2012. We note that the show cause notice has proposed demand of Service Tax by citing the provisions in the statute after 01.07.2012. In the course of adjudication, the adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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