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TMI Blog2018 (8) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. (Macmillan Press UK Ltd.), pertaining to export sales of the appellant. U.K. Company did not have any office in India. These services were rendered for a consideration paid by the appellants. The Department has issued a SCN dated 16.07.2007 demanding Service Tax in regard to "business auxiliary service" received by the appellants from the U.K. Company. The Commissioner vide Order-in-Original No. 61/2008 dated 19.12.2008 has confirmed the demands. Hence this appeal. 2. The learned counsel for the appellants has submitted that Section 66A could not have been made applicable retrospectively as it came into force only from 18.04.2006; Neither the Section nor any provision of import of service Rules, 2006 were invoked in the SCN. "Reverse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was in force till 10.05.2007, the Circular is binding on the departmental officers in view of the Hon'ble Supreme Court's decision in the case of Dhiren Chemical Industries, 2002 (139) ELT 3 (SC). 2.2. The learned counsel further submitted that even after "reverse charge mechanism" has come into force after 18.04.2006, no Service Tax can be levied invoking Section 66A if the services are rendered, performed or delivered abroad though consumed in India because consumption of services is not a taxable event but performance are rendering of services in India is relevant. They relied upon the following cases: (i). CST Vs Oil and Natural Gas Corporation Ltd., 2017 (6) GSTL 53 (Tri.). (ii). Stone & Webster International Inc. Vs. CCE, 2011 (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls 1978(2) ELT J399 (iii). CCE Vs Pradyumna Steel 1996(82) ELT 44 1(SC) (iv). Geedecon Texo Twist (P) Ltd Vs CCEC Surat 2009(238) ELT 455 3.1. The contention that the services provided beyond the territorial waters of India and that the secondary services which are used by the primary service provider for export of services are not taxable till the date of withdrawal of the aforesaid circulars is not tenable. The aforesaid circulars were issued in 2001 and 2003 clarifying the position for relevant period, when there was no statutory back up or intention to tax services provided from outside India but utilized or received in India. W.e.f 18.4.2006 Taxation of Services Rules 2006, the circulars were not valid even though they were withdr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, there is no dispute that the appellant is located in India. There is also no dispute that the services of GSAs and the foreign vendors providing repair and maintenance service have been received and consumed by the appellant, the appellant paid for the same to GSAs & foreign vendors and they are the beneficiary of the same. The fact that those services were received outside India will not change the fact that the services have been paid for by the beneficiary appellant, who is located in India and benefits have been received by the appellant, who has got their fixed establishment and permanent address in India only. Thus they fulfill the conditions mentioned in the provisions of Section 66A of the Finance Act, 1994 for levying the Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010 (17) STR J57 (SC). The departmental representative has also fairly conceded the fact. Therefore, we find that there is no need to deliberate on the issue as being a settled one. 5. However, the question remains to see whether the requisition received by the appellants after 18.04.2006 are taxable to Service Tax. As regards the contentions of the appellants that relevant Section or Rules are not quoted in the SCN, we are inclined to go by the submissions of the AR that as far as the contentions are clear wrong quoting, mis-quoting or non-quoting of Sections and Rules does not vitiate the proceedings, in view of the ratio of decisions quoted by him (Supra). 5.1. The Departmental Representative has relied upon the case of Air India (Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at services performed outside India are not to be taxed are not acceptable and the case law cited is also not applicable. They are not applicable to services like BAS which are not covered by Rule 3(ii) of Taxation of Services (Provided from outside India and received in India). BAS is covered by Rule 3(iii) which excludes services covered by Rule 3(i) and 3(ii) ibid and sub clause (zzzo)& (zzzv) of Section 65(105) and hence services received by a recipient located in India for use in relation to Business or Commerce would be taxable. We find that this contention is acceptable. 5.4. The appellants have also submitted that payment of Service Tax for the period from 18.04.2006 onwards would be a revenue neutral exercise as they would be elig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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