2016 (4) TMI 152 - AT - Service Tax

Tribunal rules in favor of Balaji Telefilms Ltd., services classified as exports under Rule 3(2)

Commissioner of Service Tax-VI, Mumbai Versus Balaji Telefilms Ltd.

The Tribunal dismissed the Revenue's appeal, finding that the services provided by M/s Balaji Telefilms Ltd. were considered exports under Rule 3(2) of ... Export of service - produced and distribution of television programmes Consideration received for taxable export service between April 2006 and March 2008 from M/s. SGL Entertainment Ltd., Hongkong - Export of Service Rules, 2005 - Contract between the two dating back to April 2006 for further distribution - Held that:- the reviewing authorities had, inappropriately, placed emphasis on the usage by the recipients of the programmes produced by the appellants. We find that the activity that is liable to tax must be one which is specifically listed in section 65 (105) of Finance Act, 1994 and which, with reference to the business of the appellant is described in sub-clause (zzu). The appellant is a 'programme producer' within the meaning of section 65(86b) and contracted with the overseas entity in that capacity. 'Programme' had been defined in section 65 (86a) in the context of the taxable but the service rendered by a programme producer in relation a programme. There can be no doubt that, if the programme producer or any other person were to further disseminate the programme to others, such dissemination would be liable for tax as a separate and distinct service. Consequently, the usage of the programme after delivery to the overseas entity is irrelevant in deciding upon the tax liability as 'programme producer'. By following the settled law, the contention of Revenue that the distinction should remain blurred is rejected. Therefore, the services rendered by the respondent is delivered or provided from India to the overseas entity. Receipt in Indian currency is Receipt of consideration in convertible foreign currency or not - contract designates the consideration in Indian rupees - Held that:- HSBC, their bankers, indicating that inward remittance from the overseas entity was in convertible foreign currency. - Consequently, there is no justification for entertaining any doubt that inward remittances were in convertible foreign currency. Therefore, both the conditions for export in Rule 3(2) of Export of service Rules,2005 have been complied with. - Decided against the revenue Issues Involved:1. Taxability of services provided by the assessee under the Finance Act, 1994.2. Compliance with Export of Service Rules, 2005.3. Conditions for treating services as exports.4. Receipt of consideration in convertible foreign currency.Detailed Analysis:1. Taxability of Services:The core issue revolves around whether the services provided by the assessee, M/s Balaji Telefilms Ltd., fall under the taxable category as per section 65(105)(zzu) of the Finance Act, 1994. The assessee produced television programs for M/s SGL Entertainment Ltd., Hong Kong, which were intended for further distribution. The Revenue contended that these services were taxable under the Finance Act, 1994. However, the assessee argued that these services were exports and thus not taxable under Indian law.2. Compliance with Export of Service Rules, 2005:The Export of Service Rules, 2005, underwent an amendment effective from 1st March 2007. The rules stipulated that for a service to be considered as an export, it must be provided from India and used outside India, and the payment for such service must be received in convertible foreign exchange. The Revenue argued that the services did not qualify as exports because the programs were in Hindi and intended for Indian viewers, and the payment was designated in Indian rupees.3. Conditions for Treating Services as Exports:The adjudicating authority held that the services rendered by the assessee were different from those rendered by the overseas entity, M/s SGL Entertainment Ltd., which was engaged in broadcasting. It was concluded that the destination of the service exported from India was not ultimately India. The Tribunal noted that the focus should be on the service provided by the assessee, which was 'programme production service,' and not on the subsequent broadcasting by the overseas entity. The Tribunal referred to previous decisions where the delivery of outcomes to the overseas entity and receipt of consideration from the overseas entity were sufficient to conclude that the services had been delivered outside India.4. Receipt of Consideration in Convertible Foreign Currency:The second condition for treating services as exports was the receipt of consideration in convertible foreign currency. Although the contract designated the consideration in Indian rupees, the respondent produced a certificate from their bank indicating that inward remittance was in convertible foreign currency. The Tribunal found this justification logical and acceptable, noting that the Indian rupee is not a freely convertible currency, and thus, the inward remittances were indeed in convertible foreign currency.Conclusion:The Tribunal dismissed the Revenue's appeal, finding that both conditions for export under Rule 3(2) of the Export of Service Rules, 2005, had been complied with by the assessee. The services were provided from India and used outside India, and the consideration was received in convertible foreign currency. The appeal of the Revenue was without merit and was accordingly dismissed.