TaxTMI 
TaxTMI 
2018 (5) TMI 34
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.... product supplied by the appellant and salary of these sales representatives are reimbursed by the appellant to these distributors on the debit note. Revenue had sought to tax on the said amount under the head of "Business Auxiliary Services". It has been argued by the learned Counsel that the exact head of "Business Auxiliary Services" is not specified by the impugned order and therefore on this count itself, proceeding should be cost. He further argued that the said activities are not clause (i) of the definition of "Business Auxiliary Services" which read as follows - "Promotion or marketing or sale of goods produced or provided by or belonging to the client". Thus the activity of sales representative is not for the goods belong to them but for the goods belonging to the distributors. He further argued that this amount given as salary of the sales representative hire by the distributors is a reimbursement of expenses. He relied on the decision of Hon'ble Delhi High Court in the case of M/s Inter Continental 2013 (29) STR 9 (Del.) wherein it has been held that reimbursement of expenses will not form part of the value of taxable service. 2.2 He further pointed out that the de....
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....these circumstances, no tax can be levy under the said head. 2.3 Learned Counsel further pointed out that the demand under head "Online Database Access and Retrieval Service" had been made in respect of invoices raised by M/s Dialogue Corporation, USA. He argued that the said invoice is raised for alert storage charges, internet charges etc. It was argued that the M/s Dialogue Corporation do not own any website where this data can be access and no information is accessed by the appellant from any database of M/s Dialogue Corporation. Learned Counsel argued that M/s Dialogue Corporation simply supply the data to the appellant and the same is not received online but are received as and when asked for. 2.4 Learned Counsel pointed out that the demand under the head "Management Consultancy Service" in respect of services received from M/s B-SRM and Nilesh Bhatt in respect of developing and permitting new bulk drugs, services of identifying licensing opportunities, counselling in respect of negotiation tactics and strategies, assisting in conducting negotiation with prospective corporation partners, etc. are covered within the scope of "Management Consultancy Service". He argued that u....
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....there was no intention to evade payment of duty. 3. Learned AR relies on the impugned order. He pointed out that in the agreement for the appointment of sales distributors a specific clause for sales promotion which read as follows - "The product promotion activities will be under the direct supervision of the Company." 4. We have gone through the rival submissions, we find that the demand under the head of "Business Auxiliary Services" had been raised in respect of amount paid to the distributors. The agreement with the distributors provides that the product promotion activities will be under the direct supervision of the Company (appellant). The invoice raised by the distributors in respect of this said expenses describe the same as "amount towards marketing survey and promotional expenses" and "marketing expenses" etc. The invoices do not contain any breakup of the expenses, nor do the debit notes. The appellant have claimed that these amounts are spent by the distributor for promotion of their own products and therefore they are not covered by the "Business Auxiliary Services". The appellants are relied on the decision of Tribunal in the case of Genom Biotech Pvt. Ltd. Vs. CC....
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....pellant in India. The service itself is not warranted except in relation to export by the appellant and hence tax, even if leviable, is not to burdened onto the export goods. 19. The original authority has failed to take note of the destination of the goods manufactured by the appellant and has deemed the services rendered in Ukraine to have been imported into India for business and commerce. From our examination of the scheme of 'deeming of import of services' for taxation supra, it can be reasonably inferred that the 'business or commerce' in Rule 3(iii) of Taxation of Services (Provided from Outside India and Received in India) Rules, 2006 is not intended tax services that are rendered in connection with business or commerce outside the territory of India. Since the appellant has no requirement of 'advertising agency service' for manufacture and export of goods, the tax demanded in the impugned order is not on the consideration for a service received in India but a tax on the funds transferred in a cross-border transaction. Such a tax is not contemplated in Finance Act, 1994. The demand of tax on the appellant is not in accordance with law." Relying on the said decision, it i....
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....at an organization is providing scientific or technical consultancy, two basic ingredients have to be established. The organization must be a science or technology institution. The consultancy must relate to one or more disciplines of science or technology. By no stretch of imagination Administrative Staff College of India can be called as a 'science or technology' institution. Since their research activities are all related to social science, we are of the view that they would not come within the ambit of 'Scientific or Technical Consultancy. So service tax cannot be leviable under the category." The said decision is approved by Hon'ble Apex Court reported at 2010 (20) STR J117. We are of the view that the regulatory services are not in the nature of "Scientific and Technical Consultancy Services" and therefore no Service Tax under the said head, the demand is also set aside. 4.2 The next issue relates to demand under the head of "Online Database Access and Retrieval Service". It has been argued that they are using service of M/s Dialogue Corporation, USA for the purpose of data storage. It has been argued that the said service provider does not provide "online" services and....