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TMI Blog2024 (3) TMI 1287X X X X Extracts X X X X X X X X Extracts X X X X ..... eign exchange. The demand of Service Tax was raised on the ground that the services were not exported as the same were provided and used in India. The department has confirmed the demand along with interest and penalty vide Order - in - Original No. BHR/EXCUS/COM/66 - 2016 - 17 dated 30.08.2016 on the ground that the Appellant has not fulfilled the condition as provided in clause (d) of the Rule 6A as per which the place of provision of service is outside India and that since the service in the present case is provided in the taxable territory of India the Appellant is liable to pay Service tax by virtue of Section 66B of the Finance Act read with Rule 6A of the Service Tax Rules. Hence the present appeal. 2. Shri Vinay Kansara, Learned C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22 dated 28.11.2022 Medgenome Labs Ltd. - 2022 - TIOL - 283 - CESTAT Bang Verizon Communication India Pvt. Ltd. - ST-2018(8)GSTL 32 Linde Engineering India Pvt. Ltd. - UOI 2022(57) GSTL 358 Bellatrix Consultancy Services CT- 2022 (67) GSTL 59 Celtic Systems Pvt. Ltd. - 2023 (70) GSTL 74 Yamazaik Mazak India Pvt. Ltd. 2018 /912/0 GSTL 66 Pulcra Chemicals (India) Pvt. Ltd. 2015 (39) STR 700 3. Shri Ashok Thanvi Assistant Commissioner (AR) appearing on behalf of the Department reiterates findings of the impugned Order. 4. We have heard both the sides and perused the records. We find that the issue in the present case is whether the Service tax liability arises on the Appellant for services of sales promotion and marketing provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zzf), (zzzp), (zzzzg), (zzzzh), (zzzzi), (zzzzk) and (zzzzl) of clause (105) of section 65 of the Act, be provision of such services as are performed outside India: Provided that where such taxable service is partly performed outside India, it shall be treated as performed Outside India; [Provided further that where the taxable services referred to in sub-clauses (zzg), (zzh) and (zzi) of clause (105) of section 65 of the Act, are provided in relation to any goods or material or any immovable property, as the case may be, situated outside India at the time of provision of service, through internet or an electronic network including a computer network or any other means, then such taxable service, whether or not performed outside India, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e when the following conditions are satisfied, namely:- (a) such service is provided from India and used outside India; and (b) payment for such service is received by the service provider in convertible foreign exchange. Explanation.- For the purposes of this rule "India" includes the designated areas in the continental shelf of India and the exclusive economic zone of India, as declared by the notifications of the Government of India in the Ministry of External Affairs numbers S.O. 429(E), dated 18th July 1986 and S.O. 643(E), dated 19th September, 1996] From the above Rule 3(1) clause (iii), it can be seen that service being Business Auxiliary Service falling under sub-clause (zzb) of Section 65(105) of the Finance Act, 1994 is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 828/20 10 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 ..... er in the shipping bill, there is no other violation of notification. Merely for the small procedural lapse exemption cannot be denied as held in various decisions cited by the appellant. Therefore, we are of the view that the appellant is entitled for the exemption Notification No. 18/2009-ST dated 07.07.2009. 7. As regards the imposition of penalty, we find that since the appellant have admittedly paid service tax along with interest and moreover, they were otherwise entitled for the Cenvat credit for the service tax they have paid, in a routine course, no malafide intention can be attributed to the appellant, therefore invoking Section 80, in the facts and circumstance of the case, the penalty is not imposable accordingly, the same is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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