2016 (9) TMI 986 - AT - Service Tax

Tribunal rules in favor of appellant, services qualified as exports under Rule 3

The Tribunal ruled in favor of the appellant, holding that the services provided qualified as export of services under Rule 3 of Export of Service Rules, ... Whether services provided by the appellant as commission agent for sale of goods of its foreign principal M/s Barco Control Rooms GMBH, Germany on their behalf is to be treated as export of services under Rule 3 of Export of Service Rules, 2005 during the relevant period, i.e. 01.04.2006 to 31.03.2011 - Held that:- the issue herein is squarely covered by the precedent ruling of this Tribunal in the case of Microsoft Corporation (I) (P) Ltd. [2014 (10) TMI 200 - CESTAT NEW DELHI (LB)]. We also take notice of the fact of the C.B.E.C. Circular No. 111/5/2009-, S.T. dated 24-02-2009. As per the law explained by the C.B.E.C., it is explicit that the services provided by the appellant is to their foreign principal who have paid for such services in convertible foreign exchange. Accordingly, we hold that appellant has satisfied both the conditions under the Rule 3 of Export of Service Rules of 2005. Accordingly, we hold that the appellant have exported the services in question and they are not liable to pay service tax under the Finance Act, 1994. Accordingly, the impugned order is set aside. - Aplication dsposed of Issues Involved:1. Whether services provided by the appellant as a commission agent for the sale of goods of its foreign principal are to be treated as export of services under Rule 3 of Export of Service Rules, 2005.2. Whether the appellant violated provisions of the Act and Rules by not registering under business auxiliary service and not paying service tax.3. Whether the extended period for demand of service tax is applicable due to suppression of facts.Detailed Analysis:1. Export of Services:The primary issue is whether the services provided by the appellant as a commission agent for its foreign principal, Barco Control Rooms GMBH, Germany, qualify as export of services under Rule 3 of Export of Service Rules, 2005. The appellant argued that their services meet all conditions prescribed under Rule 3(1) and 3(2), as they are located in India and provided services to a person located outside India. The services were delivered and used outside India, and payment was received in convertible foreign exchange. The Tribunal referred to the CBEC Circular No. 111/05/2009/ST dated 24-02-2009, which clarified that for Category III services under Rule 3(1)(iii), the relevant factor is the location of the service receiver and not the place of performance. The Tribunal concluded that the services provided by the appellant were indeed export of services, as the benefit of the services accrued outside India.2. Registration and Payment of Service Tax:The Commissioner had held that the appellant violated the provisions of the Act by not registering under business auxiliary service and not paying service tax on the commission received. The appellant contended that the services provided were export services and thus not liable to service tax in India. The Tribunal agreed with the appellant, stating that the services were exported, and hence, the appellant was not liable to pay service tax under the Finance Act, 1994.3. Extended Period for Demand and Suppression of Facts:The Commissioner invoked the extended period of limitation, alleging suppression of facts by the appellant. The appellant argued that they had disclosed all relevant information and that the services qualified as export of services. The Tribunal found that the appellant had a reasonable belief that their services were export services and thus not taxable. Consequently, the extended period for demand was not applicable as there was no suppression of facts.Conclusion:The Tribunal ruled in favor of the appellant, setting aside the impugned order. It held that the services provided by the appellant were export of services and not liable to service tax. The appellant satisfied the conditions under Rule 3 of Export of Service Rules, 2005. The extended period for demand was not applicable, and the appellant was entitled to consequential benefits in accordance with the law.Operative Part:The operative part of the order was pronounced in the open Court, and the miscellaneous application for early hearing was disposed of accordingly.