TaxTMI 
TaxTMI 
TaxTMI 
2019 (1) TMI 1243
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.... that appellants were not consciously aware of the service tax liability from 1.3.2003 to 09.09.2004, hence extended period cannot be invoked in this case as there was no suppression, fraud or intention to evade tax. Based on these findings, the adjudicating authority dropped the proposals in the SCN. Appellants however preferred appeal against the conclusions of the original authority that ORC amounts that was taxable under BAS. Vide the impugned order dt. 104/2012 dt. 25.09.2012, Commissioner (Appeals) following the decisions of ETA Travel Agency Pvt. Ltd. Vs CCE Chennai - 2007 (7) STR 454 (Tri.-Bang.) and Translanka Air Travel Pvt. Ltd. Vs CST Chennai - 2007 (7) STR 476 (Tri.-Chennai) held that appellant was liable to discharge service tax on the ORC amounts received from foreign airlines in Indian currency under BAS w.e.f. 1.7.2003. The order of the original authority was upheld to that extent without disturbing dropping of the SCN on limitation. Aggrieved, appellants are before this forum. 2. Today when the matter came up for hearing, on behalf of the appellants Ld. Advocate Ms. P. Jayalakshmi submits that they have filed appeal to the Commissioner (Appeals) only for clarity ....
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....between the Saudi Arabian Airlines Corporation, Jeddah Office and the appellant, like air passenger transportation, the appellant in the GSA Agreement for cargo is similarly required to provide commercial services to Saudia including soliciting, promoting and selling cargo and mailing transportation for Saudia and assisting in all operations to encourage traffic agreement of Saudia's lines. Evidently, the commercial services provided by the appellant, inter alia, soliciting, promoting and selling passenger air transportation and cargo and mail transportation for Saudia is very much a Business Auxiliary Service, ordered by Saudi Arabian Airlines, Jeddah, to benefit all such service flowing to Saudia's business. 8. Pursuant to number of disputes that had arisen on the condition "used outside India", the C.B.E. & C. had found it necessary to issue a Circular [No.] 111/05/2009-S.T., dated 24-2-2009. The C.B.E. & C. has advised in para-3 of the circular, that the law has to be read harmoniously so as to avoid contradictions within a legislation and accordingly, the meaning of the terms "used outside India' has to be understood in the context of the characteristics of a particular c....
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....order dated 26-10-2007. It has been confirmed by Revenue that the matter has still not been decided by Hon'ble High Court. We also note that the very same High Court of Madras, which is the jurisdictional High Court for this Tribunal, in a recent judgment in the case of Suprasesh General Insurance Services & Brokers (P) Ltd. - [2015] 62 taxmann.com 364 (Madras) = 2016 (41) S.T.R. 34 (Mad.) has addressed the very same controversy. The facts in Suprasesh are that appellant therein did not pay service tax for arranging reinsurance for Indian insurers from foreign reinsurers through foreign brokers on the ground that services were provided to a foreign company located outside India, therefore it amounted to export of service. Department argued that assessee's services were provided to Indian insurance companies and payment was also received in Indian rupee. Hence it was not an export of service for the purpose of Rule 3 of the Export of Services Rules, 2005. The High Court held that the services were provided/used in relation to commerce and industry, that the service recipient being foreign company was located outside India, it amounted to 'export of service' and there was no requirem....
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....eral Insurance Services cited (supra). We are aware that the Suprasesh judgment has been appealed against by the department and the Hon'ble Apex Court after condoning the delay has issued notice, as reported in 2016 (43) S.T.R. J22 (S.C.), however as no stay of the Suprasesh judgment has been ordered by the Hon'ble Apex Court, we intend to follow the ratio thereof as laid down by the High Court of Madras. 12.No doubt, the proviso in Rule 3(3) of Export of Services Rules, 2005 does require that the payments are received in convertible foreign exchange. But viewed in the light of decisions discussed supra, and in particular, that of the Hon'ble Apex Court's judgment in J.B. Boda & Company (supra) and that of the Hon'ble High Court of Madras in Suprasesh General Insurance Services (supra), even when the said payment to the appellant has been received in Indian rupees, however, there is a saving of foreign exchange since appellant has retained that portion and not sent the same in foreign exchange to the service recipient along with the other sale proceeds. Outflow of foreign exchange has been reduced to the extent of the commission/payment retained by the appellant within India. Such....