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TMI Blog2024 (11) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant has received the proceeds in convertible foreign exchange or not, are not under dispute. Therefore, we find force in the Appellant s arguments that no Service Tax is required to be paid. Accordingly, we set aside the confirmed demand given the Table A above. Demand in respect of Erection, Commissioning and Installation Services - As observed Appellant s turnover during the period 2008-09 to 2011-12 was much below the threshold limit. Hence no Service Tax is required to be paid by them for the period 2008-09 to 2011-12. In respect of Erection, Commissioning and Installation Services taken up during the period 2012-13, the Appellant is required to pay the Service Tax. It is found from the records that the Appellant has already paid Rs.1,44,381/- along with interest of Rs.18,172/- on 26.08.2013, which is more than the Service Tax payable if the threshold exemption of Rs.10,00,000 is considered for the period 2012-13. Therefore, we hold that the Appellant has already paid Service Tax where it is payable. Accordingly, we set aside the confirmed demand of Rs.2,75,420/- on merits. Invoking extended period of limitation - We find that the Appellant has declared of their foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice Tax (including cess) Service Tax Payable Service Tax (Rs.) Education Cess (Rs,) S H Education Cess (Rs.) Total (Rs.) 2008-09 4,80,084/- 12.36% 57,610/ 1152/- 576/- 59,338/- 2010-11 2,53,593/- 10.3% 25,359/- 507/- 254/- 26,120/- 2011-12 4,24,513/- 10.3% 42,451/- 849/- 425/- 43,725/- 2012-13 11,83,140/- 12.36% 1,41,977/- 2,840/- 1,420/- 1,46,237/- Total 2,67,397/- 5,348/- 2,675/- 2,75,420/- 5. He further submits that other condition under Rule 3(2) of the Export of Service Rules, 2005 that the payment for such services should be received in foreign currency stands fulfilled by the Appellant and there is no dispute on this ground by the Revenue. 6. In respect of the demand pertaining to foreign currency earned as commission, the Ld.Consultant submits that in respect of Export of Services Rules, 2005 Para 3(iii), so long as the services are provided to a foreign entity, no Service Tax is payable. He also relies on the Board Circular No.111/5/2009-ST dated 24.03.2009, wherein under Para 2(iii) and under (a) has been clarified that no Service Tax could be required to be paid on the activities mentioned therein. Thus, he submits that as per the statutory provisions, no Service Tax i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxable service shall be treated as export of service if such service is provided from India and used outside India . Instances have come to notice that certain activities, illustrations of which are given below, are denied the benefit of export of services and the refund of service tax under rule 5 of the Cenvat Credit Rules, 2004 [Notification No. 5/2006-C.E. (N.T.), dated 14-3-2006] on the ground that these activities do not satisfy the condition used outside India , - (i) Call centres engaged by foreign companies who attend to calls from customers or prospective customers from all around the world including from India; (ii) Medical transcription where the case history of a patient as dictated by the doctor abroad is typed out in India and forwarded back to him; (iii) Indian agents who undertake marketing in India of goods of a foreign seller. In this case, the agent undertakes all activities within India and receives commission for his services from foreign seller in convertible foreign exchange; (iv) Foreign financial institution desiring transfer of remittances to India, engaging an Indian organisation to dispatch such remittances to the receiver in India. For this, the fore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )]), 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 service has to be treated to have been used outside India because the place of performance is U.K. even though the benefit of such a seminar may flow back to the employees serving the company in India. 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 benefits of these services accrue outside India . In all the illustrations mentioned in the opening paragraph, what is accruing outsid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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