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TMI Blog2018 (7) TMI 1214X X X X Extracts X X X X X X X X Extracts X X X X ..... lants are squarely covered by the Export of Service Rules and there is no service tax liability on them. Demand do not sustain - appeal allowed - decided in favor of appellant-assessee. - ST/58121/2013-CU[DB] - FINAL ORDER NO.71035/2018 - Dated:- 28-2-2018 - SHRI ANIL CHOUDHARY, (JUDICIAL) AND SHRI ANIL G. SHAKKARWAR, MEMBER (TECHNICAL) Shri Utkarsh Malviya (Advocate) for the Appellant (s) Shri Pawan Kumar Singh (Supdt.)(A.R.) for the Revenue ORDER Per Shri Anil Choudhary : This appeal has been filed by the appellant against Order-in-Original No.62/Commissioner/Noida/2012-13 dated 11.03.2013 passed by Commissioner of Customs, Central Excise Service Tax, Noida vide which the ld.Commissioner has confirmed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 (upto 30.06.2012). During the audit, the department perused the ST-3 return and Balance Sheet of the appellant wherein the department noticed that the appellant had received commission from the foreign parties. The detailed transactions were explained by the appellant to the department by way of letters dated 01.04.2011, 30.01.2012 26.07.2012. Pursuant to the enquiries, the department issued show cause notice dated 13.09.2012 alleging (i) that the services provided by the appellant are classifiable under Business Auxiliary Service. (ii) that the services have been provided by the appellant from India and have been used in India and therefore it does not qualify as export of service under the Export of Services Rules, 2005. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax under the category of BAS we note that the service tax liability and the activities similar to the ones undertaken by the appellant/assessee were subject matter of decision by the Tribunal in earlier cases. In Paul Merchants Ltd. (supra) it is recorded that Export of Service Rules, 2005 are in accordance with Apex Court s ruling to the effect 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 consumer. We note in the present case, the recipient of service are foreign entities and they are the consumers of these services provided by the appellant/assessee from India. The various pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount to be reversed from Cenvat credit in terms of Rule 6(3A) of Cenvat Credit Rules, we note that impugned order discussed the issue in detail and held that in terms of Explanation 1(c) under Rule 6(3D) of Cenvat Credit Rules the quantification can be made. Accordingly, the value of exempted service was arrived at by the Original Authority as difference between sale price and cost of goods sold or 10% of the cost of goods sold whichever is more. Accordingly, he arrived at the Cenvat credit to be reversed by the appellant in terms of Rule 6(3). Admittedly, the formula adopted by the Original Authority was not part of the provisions under Cenvat Credit Rules, 2004 during the material time. However, trading to be considered as exempted serv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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