2017 (3) TMI 941

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....nformation and Data Base access or retrieval service, management consultant service' to foreign party in the field of health care management. The department was of the view that same is subject to service tax, but vide impugned order, Commissioner observed that service provided by the respondent-assessee in a foreign country is not subject to service tax. Being aggrieved, the department has filed the present appeal. 2. With this background we heard Shri Sanjay Jain, learned DR appearing for the Revenue and Shri Vishal Kumar, learned advocate appearing for the respondent-assessee and perused the record. 3. After hearing both the parties, it appears that identical issue has come up before this Tribunal in the case of Paul Merchants Ltd. vs.....

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....goods is understood. In fact the question as to what constitutes the export or import of service was neither raised nor discussed in the above-mentioned judgments of the Apex Court. As discussed in this order, the Export of Services Rules, 2005 are in accordance with the Apex Court's ruling in the above-mentioned judgments that Service Tax is a value added tax, which in turn is a destination based consumption tax in the sense that it is levied on commercial activities, and it is not a charge on the business but a charge on the consumers. There is nothing in Export of Service Rules, 2005 which can be said to be contrary to the principle that a service not consumed in India is not be taxed in India. (iii) What constitutes export of service ....

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....sted for the service and is liable to make payment for the same who has to be treated as recipient of the service, not the person or persons affected by the performance of the service. Thus, when the person on whose instructions the services in question had been provided by the agents/sub-agents in India and who is liable to make payment for these services, is located abroad, the destination of the services in question has to be treated abroad. The destination has to be decided on the basis of the place of consumption, not the place of performance of service, in the case of this service. (vi) Reimbursement of advertisement and sales promotion activities received from WU is not taxable as the same are for the services provided to WU, which....