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TMI Blog2018 (9) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... taxable as the service received in India. In the instant case, while the service provider located abroad, he has been procuring orders for the appellant located in India. The service falls under clause (iii) of Rule 3 of Taxation of Services (Provided from outside Indian and received in India) Rules, 2006 - Thus, the demand of duty is sustainable both, on merits as well as limitation. Penalties u/s 76 and 78 of FA - Held that:- Simultaneous penalties under Section 76 and 78 cannot be imposed. Consequently, the penalty under Section 76 is set-aside and the penalty under Section 78 is upheld - the benefit to avail 25% is extended to the appellant subject to payment of entire tax along with interest and 25% of penalty within one month o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia not charge any tax on a person who is providing any kind of service outside India. He also relied on CBEC Circular No. 36/4/2001 dated 08.10.2001 wherein the CBEC has clarified that service provided beyond the territorial waters of India are not liable to service tax the provisions of service tax have not been extended to such areas so far. He argued that though the Circular was withdrawn on 10.05.2007, the spirit of the same needs to be followed. Ld. Counsel also argued that in order to taxability, the service should be provided and received in India. He also argued that in the instant case the commission Agent is situated in abroad and not in India and therefore, the activity does not fall under the ambit of Section 66A of the Finance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) STR 1200 (Tri. Mumbai) if has held that failure to disclose the services in the ST-3 return is insufficient to invoke the extended period of limitation. In Para 6.4 of the said order, the following has been observed:- 6.4 As regards the contention raised by the appellant that the appellant in their annual balance sheets provided the relevant information, we have perused the balance sheets and the balance sheets do not reflect the payments made for the various transactions separately. It only gives the gross amount of the expenditure incurred, in terms of foreign currency. From that information it cannot be gathered, for what purpose the expenditure was incurred, whether it was for a taxable service or otherwise. Therefore, unless the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice referred to in sub-clause (zzzzj) of clause (105) of Section 65 of the Act is received by a recipient located in India, then such taxable service shall be treated as taxable service provided from outside India and received in India subject to the condition that the tangible goods supplied for use are located in India during the period of use of such tangible goods by such recipient.] Thus, so long as the recipient of service is located in India, the said service would be taxable as the service received in India. In Para 6.2 of the decision of the Hon'ble Bombay High Court it was held that the activity of business done by the commission agent located abroad for a manufacturer located in India is taxable under Section 66A. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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