TaxTMI 
TaxTMI 
2018 (4) TMI 1244
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....e undersea cable systems of M/s Flag by Appellant. The service has been provided by M/s Flag, who is located outside India and having no office or permanent establishment in India, to Appellant in relation to business or commerce. We.f. 18.04.2006 the service is covered under Rule 3 (iii) of Taxation of Services (Provided from outside India and received in India), Rules, 2006 (hereinafter referred to as 'Import of Services Rules) and hence the liability of payment of ST appears to be on Appellant in terms of provisions of Section 66A of the Finance Act, 1994 readwith Rule 3 (iii) of the import of service rules and readwith provisions of Rule 2 (1) (d) (iv) of the Service Tax Rules, 1994. The demand was made by alleging that the services appeared to be falling under the category of "Support Service of Business or Commerce" under Section 65 (104c) readwith Section (105) (zzzq) of the Finance Act as infrastructural support provided to telecommunication operators. Also a demand was made under the category of that the Service Maintenance Agreement made between M/s FT and M/s RCL on the ground that the charges are payable to M/s Flag on periodical basis for maintenance of cable systems a....
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....ersea cable upto the landing station in India (Flag Telecomm Point to Point Network), a portion of which falls within 12 nautical miles from the India landmass and for which the Respondent were required to pay O & M charges means that the services of M/s Flag were partially performed in India. Even if certain repairs were carried out outside India then too taking into consideration the overall scope of service the same has been partially performed in India and in terms of 1^st proviso to Clause (ii) of rule Rule 3 of the Import of Service Rules, 2006 would have to be treated as partially performed in India and taxable in the hands of the Respondent. He submits that the demand on restoration charges has also been wrongly dropped as the services were partially performed in India. He relies upon the Tribunal order in case of M/s Jagat Machinery Manufacturers P. Ltd. Vs. CCE 2012 SCC Online CESTAT 2747 (2012) CESTAT 2888 and Hon'ble High Court judgment in case of Commissioner, ST - Mumbai - II Vs. SGS India Pvt. Ltd 2014 (34) STR 554 (BOM). He thus states that the demands are liable to be confirmed and impugned order is required to be set aside. 3. Shri Gopal Mundra, Ld. CA, with Ms....
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....it would be covered under the category of Telecommunication service when provided by Telegraph Authority. The services provided by M/s Flag Telecom under SOMA would have been covered under the category of "Leased Circuit Services/ Telecommunication Services" w.e.f 01.06.2006 if M/s Flag would have been a telegraph authority. In absence of same the CSA as well as SOM services provided by M/s Flag are not liable for service tax. The Flag Telecom is outside the territorial boundaries of India and the provisions of Indian Telegraph Act does not apply to said concern nor is he required to take licence under ITA hence it is not telegraph authority and therefore the services rendered by M/s Flag would not get covered under the category of Telecommunication services. He submits that the services of M/s Flag has been wrongly classified as Business Support Services/ MMRA on the ground that the same has been provided by the person resident outside India. This violation of Section 65A of the Act which deals with the classification of services as service cannot be classified under two categories. He relies upon the Board Circular No. 137/27/2011 dt. 19.12.2011 that the telecommunication service....
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.... the Tribunal dispute the same as the impugned order to that extent stands accepted by the Revenue. Though the ld. AR has argued that in form ST - 7 the column No.7 mentions the details of demand and thus the same be deemed as challenged but we find from the review order that the said demand has not been challenged nor the appeal which is verbatim copy of the review order disputes the dropping of demand. We thus are of the view that the demand dropped by the adjudicating authority under the category of "Support Service of Business or Commerce" having not been disputed/ challenged by the revenue, the impugned order to that extent remains undisputed and attained finality. 5. As regard the demand under the category of Management, Maintenance and Repair Services we find that the revenue has contended that part of cable system lies within 12 nautical miles of land mass of India and hence the service of MMS has been partly performed in India and hence taxable. The adjudicating authority has set aside the demand on the ground that it has not been established in SCN by any cogent evidence or by way of statement of any person that the MMS Service has been performed in India. He held that....