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TMI Blog2024 (8) TMI 959X X X X Extracts X X X X X X X X Extracts X X X X ..... rectly supplied by the foreign steel mills to the Indian customers. Arcelor India also satisfies condition (b) of rule 3(2) as payments for such service have been received in convertible foreign exchange.' The principle laid down by the Larger Bench in the aforesaid case is squarely applicable to the facts of the present case. Hence, the services rendered by the appellant to their holding company would fall within the scope of Export of Service Rules, 2005. Consequently, the demand cannot be sustained. The impugned orders are aside - appeals are allowed. - DR. D.M. MISRA, MEMBER (JUDICIAL) AND MRS R BHAGYA DEVI, MEMBER (TECHNICAL) Mr. Roshil Nichani, Advocate for the Appellant Mr. Dyamappa Airani, Joint Commissioner (AR), for the Respondent ORDER These two appeals are filed against the Order-in-Appeal No.207 208/2010 dated 04.06.2010 passed by the Commissioner of Central Excise(Appeals-II) Bangalore. 2. Briefly stated the facts of the present case are that the appellants are engaged in providing as well as receiving taxable service under the categories of Maintenance or Repair Services , Erection, Commissioning or Installation Services and Business Auxiliary Services (BAS, fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customers of the Appellants holding company. That the BAS provided by the Appellants, as brought out in the foregoing paragraphs, satisfied all the conditions of export of services under Rule 3(3)(i) of Export Rules thereof since the same has been provided and used in or in relation to commerce or industry and the recipient thereof (the holding company) is located outside India. That the phrase used in or in relation to commerce or industry and the recipient of such services is located outside India provided in Rule 3(3)(i) of Export Rules is akin to the phrase used outside India provided in Rule 3(1)(iii) of the Export Rules (amended subsequently). Board Circular No.111/5/2009-S.T. dated 24-2-2009 clarified that For the services that fall under Category III [Rule 3(1)(iii)], the relevant factor is the location of the service receiver and not the place of performance. In this context, the phrase used outside India is to be interpreted to mean that the benefit of the service should accrue outside India. Thus, for Category III services [Rule 3(1)(iii)], it is possible that export of service may take place even when all the relevant activities take place in India so long as the benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmany, considering that the indent commission was paid by such holding company. The Appellants were, therefore, of the belief that the same qualified as export of services under the Export Rules; that if an assessee has acted on its bona fide belief and understanding of the law, and if such understanding of the Appellants is established to be incorrect subsequently, that by itself would not attract the extended period of limitation. Reliance is placed upon Dabur India Ltd. v. CST, 2015 (39) STR 1021 (T) and CST v. Traffic Manager, Mumbai Port Trust, 2015 (37) STR 993 (T) for the same; that the indent commission received by the Appellants was disclosed in their books of accounts/financials. Therefore, suppression of facts with the intent to evade payment of tax cannot be alleged; that the above issue came to be settled only by the Larger Bench of this Hon ble Tribunal in Arcelor Mittal Stainless (I) Pvt. Ltd. v. CST, (2023) 11 Centax 269 (Tri.-LB), after a series of conflicting decisions by different Benches of the Tribunal; that merely because the Revenue takes a different position or reads a statutory provision differently, is no ground to invoke the extended period of limitation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Revenue reiterated the findings of the learned Commissioner(Appeals). 5. Heard both sides and perused the records. 6. The short issue involved in the present appeals for determination is: whether the appellants are required to pay service tax for receiving indent commission from their overseas holding company. Undisputed facts are that the appellants are private limited company incorporated in India, subsidiary of M/s. Sartorius AG Germany. They are engaged in manufacture of filtration and fermentation equipments, weighing systems etc. The appellants also rendered BAS as commission agent to their foreign holding company. The appellants identify customers for the holding company in India who in turn place orders with their overseas company and a certain pre-determined percentage of sales called indent commission in convertible foreign exchange received by the appellants. The question involved is whether the said indent commission is liable to service tax. 7. We find that the issue is covered by the judgment of the Larger Bench of this Tribunal in the case of Arcelor Mittal Stainless (I) Pvt. Ltd. Vs. CST, Mumbai-II [(2023) 11 Centax 269 (Tri. LB)]. In the said case, the Larger ..... X X X X Extracts X X X X X X X X Extracts X X X X
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