Sales promotion services to foreign recipients qualify as export under Rule 3(1)(iii) of Export of Service Rules 2005

CESTAT Ahmedabad held that sales promotion services provided in India by appellant to foreign recipients for promoting goods belonging to foreign service recipients constitutes export of service under Rule 3(1)(iii) read with Sub-Rule (2) of Rule 3 of Export of Service Rules, 2005. Since payment was received in convertible foreign exchange, the service qualified as export and was not liable to service tax. The tribunal relied on its earlier decision in appellant's own case for identical issue covering different period. The impugned order was set aside and appeal was allowed.

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Issues:
Whether services related to sales promotion of goods in India provided by the appellant to recipients located outside India qualify as export of service under the Export of Service Rules, 2005 and Rule 6A of the Service Tax Rules, 1994.

Analysis:
The appellant provided various services related to sales promotion of goods in India to a company situated outside India during 2010-11 to 2012-13, receiving commission in convertible foreign exchange. The department contended that since the service was related to sales promotion in India, it should be taxable. However, the appellant argued that even though the service was performed in India, since the recipient of the service was located abroad, it should be considered export of service and not taxable. The appellant cited several judgments supporting their position, including Evonik Specialty India Pvt. Limited, Solvay Specialities India Pvt Limited, and others.

The appellant further argued that the show cause notice issued for the period 2010-11 to 2012-13 invoked an extended period, which is not permissible when the same issue has already been addressed in an earlier notice. The Revenue reiterated the findings of the impugned order, maintaining that the service should be taxable.

After considering the submissions and records, the Tribunal found that the appellant provided sales promotion service in India for a foreign service recipient, with payment received in convertible foreign exchange. Citing a previous order in the appellant's own case, the Tribunal concluded that the service qualified as export of service under Rule 3 of the Export of Service Rules, 2005. The Tribunal referenced the conditions for qualifying as export of service, including the service being provided from India and used outside India, as well as payment received in convertible foreign exchange. The Tribunal noted that the appellant's activity fell under these conditions and was not taxable.

Based on the previous order in the appellant's own case and the supporting judgments cited, the Tribunal set aside the impugned order, allowing the appeal. The Tribunal emphasized that the issue was no longer res-integra, as it had been decided in favor of the appellant in a similar case. The decision was dictated and pronounced in open court on 05.06.2024.

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