TaxTMI 
TaxTMI 
2015 (1) TMI 1098
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....g a commission from their foreign client in foreign exchange during the period August 2003-December 2003, May 2005-December 2005 and April 2007-March 2012. The show cause notices were issued to the appellant. Same were adjudicated and the demands made against the appellants were confirmed along with interest and various penalties under the Finance Act, 1994 were also imposed. Aggrieved from those orders appellants are before us. 3. The ld. counsel for the appellants submit that the appellant is engaged in the activity of maintenance and repairs of CDMA phones sold by their foreign clients to their Indian buyers during the warranty period and getting their charges from their foreign supplier as they are providing the service of maintenance and repair of CDMA phones on behalf of their foreign client. He further submits that providing market avenues to their foreign clients is also the service which is exported by them as the services received of identifying customers is only their foreign clients and on their identifying the foreign client is free to sell the goods or not to sell the goods. Therefore, it is the case of export of services accordingly no service tax is payable by them....
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.... not fall under the Export of Taxable Service Rules, 2005 (sic) . Therefore, refund claims was rejected. 7. In that case this Tribunal further observed in para 6,7,8,9 & 10 as under: "6. In this case, the appellant is a Distributor/agent of their foreign clients and procuring orders for supply of equipment by the foreign supplier. The appellant has no connection with the buyers in India. In fact he is identifying the buyers for the foreign clients, and the foreign clients are selling equipment to the Indian buyers, on principal to principal basis. We further find that as the equipment are having warranty and the foreign client have to provide certain services to Indian buyers and for providing that service, the appellants are providing service to Indian buyer on behalf of the foreign clients. In these circumstances, the recipient of the service is located outside India who used the services of the appellant to provide service to their buyers. In these circumstances, we find that a similar case came up before this Tribunal in Paul Merchants Ltd. 2013 (29) STR 257 -2012-TIOL-1877-CESTAT-DEL wherein the facts of the case are that the person who is located outside India wanted to sen....
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....including NBFC or any other body corporate or any other person/commercial concern, become taxable under Section 65(105)(zm) read with Section 65 (12), in my view even during period w.e.f . 1.6.2005, the service provided by the Agents of WU and sub-agents appointed by sub-agents would be correctly classifiable as "Business Auxiliary Service" under Section 65(105)(zzb) read with Section 65(19) as the function of Agents/Sub-agents is essentially an agency function i.e. providing services on behalf of WU in India for commission and besides this the marketing & promotion of money transfer service of WU, in India, both of which are covered by the definition of Business Auxiliary Service as given in Section 65(19). "69 . Next comes the main question whether- (a) the services provided by the Agents of WU, and (b) the services provided by the sub-agents appointed by Agents, amount to export of service out of India and, hence, not taxable in India. Linked with this question are the questions- (ii) who is the recipient of the service provided by Agents and the sub-agents whether the WU located abroad or the persons in India who received the money sent by their relatives, frien....
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....le property located abroad, belonging to an Indian Resident A provided by an India Insurance Company B) as having been consumed at the place where the immovable property is located; and (c) Services in relation to business; (e.g. an Indian Company A providing the services of marketing & sales promotion in India to a company B located in Singapore in respect of the products manufactured by B) as having been consumed at the place where the business is located. In fact the European Union has similar rules for determining Place of Provision of Service where the Service is taxable. Thus, the Export of Service Rules, 2005 and Taxation of Services (provided from outside India as received in India) Rules, 2006, are basically the rules for determining the place of consumption of Services . These rules in the budget of 2012-13 have been replaced by Place of Provision of Service Rules, 2012, the Rule 3 of which states that the place of provision of a service shall be the location of the service recipient, (who is the service consumer). Therefore, in my view, there is nothing in the Export of Service Rules, 2005 which can be said to be contrary to the constitutional provisions of the Apex C....
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....hiness of the goods, placed orders for the goods, which were exported by the Indian exporters. The consideration for the services provided by the appellant was paid in convertible foreign exchange. The department demanded service tax on this consideration paid by the foreign parties to the appellant. In the said case, this Tribunal - 2011-TIOL-666-CESTAT-MUM held that the services rendered by the appellant were consumed abroad where the appellant's clients used the service of inspection/test/analysis to decide whether the goods intended to be imported by them from India conformed to the requisite specifications and standards. In other words, the benefit of the service accrued to the foreign clients outside the Indian territory. Therefore, it cannot be said that there was no export of service. The matter was taken up to the Hon'ble High Court and the Hon'ble High Court held as under:- "24. In the present case, the Tribunal has found that the assessee like the respondent rendered services, but they were consumed abroad. The clients of the respondents used the services of the respondent in inspection/test analysis of the goods which the clients located abroad intended to ....
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.... of the decision of Paul Merchants Ltd. and SGS India P. Ltd. (supra), we have examined the facts of this case. In this case also, the appellant are providing the service of maintenance of equipment on behalf of their foreign clients to Indian buyers. They have provided the service on behalf of their foreign clients. We further find that during the warranty period, the repairs and maintenance service was to be provided by the foreign supplier and the appellant acted on behalf of the foreign supplier only. It is an admitted fact that the Indian buyer has not paid any amount towards the service provided by the appellant to the appellant during warranty period whereas the appellant who provided the service to Indian buyers has paid the service tax on maintenance service after the warranty period. 10. In these circumstances, we have no hesitation to hold that as the appellant has provided the service of procuring purchase orders for their foreign clients and providing maintenance service to the Indian buyers during the warranty period on behalf of their foreign clients on the instructions of foreign clients are covered by the Rule 3(3) of Export of Taxable Service Rules, 2005. Therefo....