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TMI Blog2023 (8) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... y established that the services have been provided by the foreign agents to the foreign site office/branch office of Appellant and thus, the service cannot be said to be received in India when the same is provided outside India, used outside India and paid outside India. Therefore, demand of service tax in the impugned matter legally not correct on this ground also. The impugned order cannot be sustained as there is no specific allegation in the show-cause notice on the category of the Business Auxiliary Service - the impugned order is not sustainable on limitation - Even though the demand is restricted to normal period, the total value of taxable services is within the small-scale exemption - Either way, the impugned order is not sustainable - Appeal allowed. - MR. S. S. GARG, MEMBER (JUDICIAL) AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri Atul Gupta, CA for the Appellant Shri Raman Mittal, Authorised Representative for the Respondent ORDER The appellant, Shri Jagjeet Singh Parwana, was engaged in providing Marketing Service/ Distributorship and promotion of health care products of M/s Daehsan Trading India Pvt. Limited and were also working as di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prabhjeet Kaur- 2018 (9) TMI 1146-CESTAT Chandigarh- 2018 (9) TMI 1146. Shri Heera Lal- 2019 (4) TMI 1562-CESTAT New Delhi. Bajarang Lal- 2019 (5) TMI 231-CESTAT New Delhi. Shri Ramdiya and others- 2020 (2) TMI 191-CESTAT Chandigarh Shri Bhairu Dan Karwa and others- 2016 (10) TMI 1295-CESTAT New Delhi. 4. Learned Consultant further submits that it is incorrect to tax the amounts received towards sharing of international profit as held in Charanjeet Singh Khanuja (supra); incentives received cannot be taxed as held in Bajaj Allianz Life Insurance Co. Ltd.- 2015 (38) STR 1159 (Tri. Mumbai) and Asveen Air Travels (P) Ltd.- 2022 (64) GSTL 551 (Tri. Chennai); learned Commissioner (Appeals), though has given relief on account of Out of India Commission for the year 2010-11, did not give relief for previous years i.e. 2007-2010, by oversight. Learned Consultant fairly concedes that as held in Charanjeet Singh Khanuja (supra), the Commission earned in multilevel marketing, and other incentives are taxable; however, looking into the fact that the impugned order is liable to be set aside for demanding tax without specifying the service and on limitation, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of the present case and hence we find that the demand for service tax cannot be sustained on this ground alone. 5.4 Without prejudice, we also find that provisions of Section 66A(1) of the Finance Act, 1994 reproduced below provide as under : Charge of service tax on services 66A. received from outside India. (1) Where any service specified in clause (105) of Section 65 is, (a) provided or to be provided by a person who has established a business or has a fixed establishment from which the service is provided or to be provided or has his permanent address or usual place of residence, in a country other than India, and (b) received by a person (hereinafter referred to as the recipient) who has his place of business, fixed establishment, permanent address or usual place of residence, in India, such service shall, for the purposes of this section, be taxable service, and such taxable service shall be treated as if the recipient had himself provided the service in India, and accordingly all the provisions of this Chapter shall apply : Provided that where the recipient of the service is an individual and such service received by him is othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the foreign site office/branch office of Appellant and thus, the service cannot be said to be received in India when the same is provided outside India, used outside India and paid outside India. Therefore, demand of service tax in the impugned matter legally not correct on this ground also. 7. We find that the Tribunal in the case of Charanjeet Singh Khanuja (supra) has held that: 16. Another plea raised in these appeals is regarding limitation. It is the contention of the assessees that there was absolutely no suppression or mis-statement of facts or deliberate contravention of the provisions of the Finance Act, 1994 or of the Rules made thereunder with intent to evade payment of Service tax. The Department s contention, on the other hand, is that the assessees neither obtained service tax registration nor did they declare their activities to the jurisdictional Service tax authorities nor did they file ST-3 Return and, therefore, they are guilty of suppression of relevant facts and deliberate violation of the provisions of Finance Act, 1994 and of the Rules made thereunder with intent to evade payment of tax. On considering the rival submissions on this point, we ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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