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TMI Blog2019 (6) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Sanjay Jain, Authorised Representative for the Respondent ORDER PER C L MAHAR : The facts in brief are that the appellant is a company incorporated in India as a subsidiary company of M/s. STC China. The appellant are registered with the Service Tax department for providing services such as Business Auxiliary Services, Business Support Services, renting of immovable property services, and erection, commissioning or installation services, etc. During the course of audit of the appellant record for the financial year 2006-2007 to 2009-2010, it was detected that appellant had received certain commission amounting to ₹ 1,17,24,448/- which was received by the appellant from their foreign based parent company for providing them Business Auxiliary Service in the form of undertaking research for Indian Domestic market, to explore potential customers, conducted sales promotion and marketing behalf of their principal namely, M/s. STC. The appellant have submitted that no Service Tax was payable on the services provided by them on their foreign based parent company as the activity undertaken by them amounted to export of services as per provisions of Export of Services Rules, 2005. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exported by them to a foreign based service recipient. The learned advocate has also submitted that the issue is no more res integra as several decisions of this Tribunal has been pronounced on the subject wherein the services in a situation like one of the appellant has been considered as export of the service. Learned advocate has placed reliance on following decisions in support of his arguments:- 1. GAP International Sourcing (India) P Ltd . [2014 (TIOL-465-CESTAT-Del)] 2. Microsoft Corporation (I) (P) Ltd. Vs CST New Delhi [2014 (36) STR 766 (Tri-Del)] 3. Paul Merchants Ltd. Vs. CCE Chandigarh [2013 (29) STR 257 (Tri)] 4. IBM India Pvt. Ltd. Vs. CCE Cus and Service Tax, [2018 (17) GSTL 268 (Tri-Bang)] 5. Accent Overseas P. Ltd vs. CST, New Delhi [2018 (14) GSTL 367 (Tri-Del) and several others. 4. The learned advocate has also argued that the Circular No. 141/10/2011-TRU dated 13.05.2011 is inappropriate in the given facts of this matter. 5. We have also heard the learned DR Shri Sanjay Jain who has supported the findings of the impugned order-in-appeal. 6. Having heard both the sides and after perusal of the record of the appeal, we feel that the matter is no longer res inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and Distributing Co. of India Ltd. v. Commercial Tax Officers [1960 (11) STC 764] explaining the meaning of export is not relevant inasmuch as the same deals with the export of goods and not export of services; (ii) That the Business Auxiliary services provided by the assessee to their Singapore parent company was delivered outside India as such was used there and is covered by the provisions of Export of Service Rules and are not liable to Service Tax. (iii) The principle of equivalence between the taxation of goods and taxation of services, as laid down by the Hon ble Supreme Court in the case of All India Federation of Tax Practioners [2007 (7) S.T.R. 625 (S.C.)] as also the principles of destination based consumption tax were in the context of Constitutional Authority of levy of Service Tax on certain services and the issue of Export of Service in terms of Export of Services Rules was not the subject matter of said decision. The Export of Services Rules, 2005, being destination based consumption tax are in accordance with the declaration of law by the Hon ble Supreme Court. (iv) Inasmuch as the appeal No. ST 828/2010 was not argued by both the sides, the same can be listed fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Other Financial services, Business Auxiliary services and Telecom services), it has been specified that would be export , - (a) If they are provided in relation to business or commerce to a recipient located outside India; and (b) If they are provided in relation to activities other than business or commerce to a recipient located outside India at the time when such services are provided. It is an accepted legal principle that the law has to be read 3. harmoniously so as to avoid contradictions within a legislation. Keeping this principle in view, the meaning of the term used outside India has to be understood in the context of the characteristics of a particular category of service as mentioned in sub-rule (1) of Rule 3. For example, under Architect service (a category I service [Rule 3(1)(i)]), even if an Indian Architect prepares a design sitting in India for a property located in U.K. and hands it over to the owner of such property having his business and residence in India, it would have to be presumed that service has been used outside India. Similarly, if an Indian event manager (a category II service [Rule 3(1)(ii)]) arranges a seminar for an Indian company in U.K. the ser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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