2010 (1) TMI 143 - AT - Service Tax

Denial of service tax refund for commission agent reversed under Export of Services Rules 3 and 5; refund granted

CESTAT, MUMBAI - Appeal allowed. Tribunal held that denial of refund of service tax paid by the appellant as a commission agent under Rule 5 of the Export ... Export of services - business auxiliary services - rebate of service tax under Rule 5 Export of Services Rules, 2005 - used outside India (benefit accrues outside India) - payment received in convertible foreign exchangeBusiness auxiliary services - export of services - used outside India (benefit accrues outside India) - payment received in convertible foreign exchange - rebate of service tax under Rule 5 Export of Services Rules, 2005 - entitlement to rebate of service tax paid on commission (business auxiliary service) exported by the assessee for the period 19.4.2006 to 31.12.2006 - HELD THAT: - The Tribunal found that the appellant rendered business auxiliary services as a commission agent by procuring purchase orders in India and transmitting them to foreign suppliers, who received and acted upon those orders abroad; the benefit of the service thus accrued to the foreign recipients outside India. The appellant also received commission in convertible foreign exchange, satisfying the payment condition. The Board's clarification in CBEC Circular No.111/5/2009-ST, interpreting 'used outside India' to mean the benefit of the service accrues outside India, was held to be in conformity with Rules 3 and 5 of the Export of Services Rules, 2005. Applying that interpretation to the facts, the Tribunal concluded that the conditions for export of service under the Rules were satisfied and the lower authorities' denial of rebate could not be sustained. The Tribunal relied on earlier decisions reaching the same conclusion and set aside the impugned order to the extent of the challenge.The claim for rebate of service tax under Rule 5 in respect of the exported business auxiliary service (commission) was allowed and the impugned order denying refund was set aside.Final Conclusion: Appeal allowed; refund claim under Rule 5 (exported business auxiliary services) upheld for the period 19.4.2006 to 31.12.2006 on the basis that the service was delivered and used outside India (benefit accrued outside India) and payment was received in convertible foreign exchange. Issues:- Rejection of claims for rebate of service tax paid by the appellant as a commission agent.- Interpretation of conditions for rebate of service tax under Rule 5 of the Export of Services Rules, 2005.- Denial of refund of service tax by lower authorities.- Clarification on the phrase 'used outside India' in the context of business auxiliary services.- Application of relevant legal provisions and circulars to determine eligibility for rebate of service tax.Analysis:1. The appellant filed an appeal against the rejection of claims for rebate of service tax paid as a commission agent. The appellant procured purchase orders in India for suppliers of goods located abroad, who exported the goods to buyers in India and paid commission to the appellant in foreign exchange. The claim for rebate was made under Rule 5 of the Export of Services Rules, 2005, which specified conditions including the service being delivered outside India and payment received in convertible foreign exchange.2. The lower authorities acknowledged the receipt of commission in foreign exchange but refused to accept that the service provided by the appellant was delivered and used outside India. Consequently, the claim for rebate of service tax was rejected, leading to the denial of a refund amounting to Rs. 8,02,364 for a specific period.3. The Tribunal found that the denial of refund was contrary to the law as clarified in a CBEC circular, which stated that the benefit of the service accruing outside India could constitute export of service even if the activities took place in India. The service provided by the appellant, classified as business auxiliary services, met the conditions for export as per Rules 3 and 5 of the Export of Services Rules, 2005. The appellant's activities, including procuring purchase orders in India and transmitting them abroad, resulted in the benefit accruing outside India, fulfilling the conditions for rebate.4. The Tribunal referred to previous decisions supporting the appellant's case, such as Blue Star Ltd. vs. CCE, ABS India Ltd. vs. CST, and CST, Ahmedabad vs. B.A. Research India Ltd., where the benefit of export was derived by recipients outside India. The Tribunal set aside the impugned order and allowed the appeal, emphasizing that the business auxiliary service provided by the appellant was delivered and used outside India, making them eligible for the rebate of service tax.This detailed analysis highlights the key legal issues, the application of relevant rules and circulars, and the Tribunal's decision in favor of the appellant regarding the rebate of service tax.