TaxTMI 
TaxTMI 
2016 (7) TMI 1209
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....ary Service (BAS) and Business Support Service. Consequent upon audit of the records conducted by the officers in July, 2010 proceedings were initiated against the appellant for non-payment of service tax in respect of agreements entered into by the appellant with M/s EADS, France and EADS, GmbH, M/s Airbus S.A.S. and Astrium Ltd. The gist of the allegation of the Revenue is that the appellants failed to discharge service tax under the category of Business Auxiliary Service as they have undertaken various operations in India pursuant to the agreement with foreign companies. The second point is regarding non-payment of service tax under the category of manpower recruitment or supply agency service w.r.t. certain employees who were seconded t....
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....rance and EADS GmbH located outside India and all payments are received in convertible foreign currency. Hence all the conditions of Export of Services Rules, 2005 are fulfilled ; (3) the matter, now in dispute, has been settled in favour of appellant by various decisions of the Tribunal :- (i) M/s Paul Merchants Ltd. vs. CCE, Chandigarh reported in 2013 (29) S.T.R. 257 (Tri. Del.) ; (ii) Microsoft Corporation (I) Pvt. Ltd. vs. CST, New Delhi reported in 2014 (36) S.T.R. 766 (Tri. Del.) and (iii) Gap International Sourcing (India) Pvt. Ltd. vs. Commissioner reported in 2015 (37) S.T.R. 757 (Tribunal). (4) for the period post 27/2/2010 the appellants fulfilled the conditions for export of service ....
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....for income tax are all with the appellants. The salaries paid to the employees cannot be subjected to service tax ; (9) without prejudice to all the above it is submitted that even in case the service tax liability arises the whole tax amount is available for credit and as such the whole exercise is revenue neutral. 3. The learned AR contested the submissions of the appellant. He submitted that the case laws relied on by the appellant were examined by the Original Authority and he came to the conclusion on tax liability after perusing the nature of agreement. He supported the findings of the lower Authority. 4. We have heard both the sides and examined the appeal records. On the first issue regarding tax liability of the appe....
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....ourt. 5. On the first issue relating the appellants liability under BAS it is now a well settled legal position that the service involved is in fact exported out of India and there is no service tax liability. In M/s Paul Merchants Ltd. vs. CCE, Chandigarh reported in 2013 (29) S.T.R. 257 (Tri. Del.) it is held that what constitutes export of service is to be determined strictly w.r.t. the provisions of Export of Services Rules, 2005. It is the person who requested for the service and is liable to make payment for the same who has to be treated as recipient of service and not the person affected by the performance of the service. Thus, when the person on whose instructions the services, in question, has been provided and is located abroa....
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....Manpower Recruitment and Supply Agency . The impugned order nowhere established that the foreign entities are involved in such business of manpower supply. The appellant have a strong case of this ground alone. Further, on perusal of the agreement we find that the employees are under the control and supervision of the appellants and their salary is disbursed by the appellant. All the statutory obligations as an employer, like payment of PF, TDS for income tax are all fulfilled by the appellant. It is not shown in the proceedings before the lower Authority that any consideration is being paid for obtaining manpower supply service from the foreign companies. The reimbursement amount paid by the appellant to the foreign companies is relating t....