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TMI Blog2018 (10) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... are not liable to service tax - the demand as far as visa services rendered by the appellants are concerned does not sustain. Ground handling agency services - BAS services - Case of appellant is that the services are in the nature of export and therefore, in terms of Rule 3(3) of Export of Service Rules, 2005, the services are exempt - Held that:- On being questioned, the learned counsel could not specifically reply as to whether such services are rendered only with reference to the export cargo or otherwise. He submitted that necessary details are contained in the agreements and he was not in a position to submit the agreements readily - for determination of the liability of service tax of the appellant vis-à-vis the contracts and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led as cargo services agreement and other as cargo general sales agent agreement. The Department alleged that the appellants are rendering Business Auxiliary Service as per Section 65(19) of the Finance Act, 1994. The taxable service being under Section 65(105)(226) vide show-cause notice dated 7.8.2006 was issued to the appellants demanding service tax of ₹ 1,97,39,635/- along with Education Cess of ₹ 1,13,720/-. The show-cause notice was confirmed by the Order-in-Original dated 18.1.2008 wherein the Commissioner confirmed the demand of ₹ 1,81,72,335/- and Education cess of ₹ 1,03,194/- along with interest and penalties. Another show-cause notice dated 14.7.2008 was issued seeking to increase the penalty under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m to obtain the visa. Such a service provided by a visa facilitator, in the form of assistance to individuals directly, to obtain a visa, does not fall under any of the taxable services under Section 65 (105) of the Finance Act, 1994. Hence service tax is not attracted. 2.2 He further submitted that the Circular was followed by the Hon ble Tribunal in the following cases: Green Channel Travel Services P. Ltd. vs. Commissioner, ST, Ahmedabad: 2012 (26) STR 527 Good Wind Travels Pvt. Ltd. vs. CCE, Ahmedabad: 2013 (31) STR 598 VFS Global Services Pvt. Ltd.: 2013 (30) STR 411 (Tri.Mum.), wherein it was held that on perusal of the said Circular, we find that the appellants are providing the services mentioned in the CBEC C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 3 of Export of Services Rules, 2005. The circular further gives an example of category of three services [Rule 3(1)(iii)] where it is possible that services may take place even when all the relevant activities take place in India so long as the benefits of the services accrue outside India. Board further clarifies that for Rule 3(1)(iii), the relevant factor is the location of the service receiver and not the place of performance. The same principle was enunciated by Hon ble Supreme Court in the case of J.B. Boda Co. (P) Ltd.: 1997 (223) ITR 271 (SC). 2.4 The learned counsel for the appellants has submitted that having issued a second show-cause notice on 14.7.2008, the learned Commissioner has sought to increase the penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary details are contained in the agreements and he was not in a position to submit the agreements readily. Therefore, we find that for determination of the liability of service tax of the appellant vis- -vis the contracts and the actual nature of the work undertaken by the appellants so as to evaluate whether they can be termed as export of services. 4.2 Coming to the subsequent issuance of show-cause notice seeking to increase the quantum of penalty under Section 76 from ₹ 100/- per day to ₹ 200/- per day, we find that the learned Commissioner has clearly erred in taking a step which amounts to review of his own order. The Department was well within its rights to file an appeal before the appropriate form if it was fel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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