TaxTMI 
TaxTMI 
TaxTMI 
2019 (6) TMI 686
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....ic market, to explore potential customers, conducted sales promotion and marketing behalf of their principal namely, M/s. STC. The appellant have submitted that no Service Tax was payable on the services provided by them on their foreign based parent company as the activity undertaken by them amounted to export of services as per provisions of Export of Services Rules, 2005. They have further contended that the commission received by them have been earned in the convertible foreign exchange and as per the provisions of rule 3(2) of the Export Service Rules, 2005 both the conditions of the Export of Service are met by them and therefore, they are legally not required to pay any service tax on the same. After issuance of Show Cause Notice, the matter had been adjudicated vide order in original dated 28.07.2014 whereunder all the charges of Show Cause Notice had been confirmed. The appellant have gone before the Commissioner (Appeals), who vide his order dated 16.12.2015 has endorsed the findings of the Order in Original and thereby confirmed the payment of Service Tax on the activity undertaken by the appellant. Penal provisions and interest have also been got confirmed. The appellan....
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....hers. 4. The learned advocate has also argued that the Circular No. 141/10/2011-TRU dated 13.05.2011 is inappropriate in the given facts of this matter. 5. We have also heard the learned DR Shri Sanjay Jain who has supported the findings of the impugned order-in-appeal. 6. Having heard both the sides and after perusal of the record of the appeal, we feel that the matter is no longer res integra and it has already been settled by this Tribunal in various decisions as cited above. The relevant extract of this Tribunal's decision in case of IBM India Pvt. Ltd. Vs. CCE Cus and Service Tax, [2018 (17) GSTL 268 (Tri-Bang)]. Relevant extract is reproduced herein below: "8. As regards Point No. 2 of service tax liability on the various amounts received by the appellant for marketing of the services of the parent concern, we find that there is no dispute as to the fact that the appellant is rendering the services such as selling, obtaining orders, providing the market support to identify and promote the products of M/s. IBM World Trade Corporation (parent concern), it is undisputed that these services are provided in India and hence It is the case of the Revenue that the sales commis....
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....onal Authority of levy of Service Tax on certain services and the issue of Export of Service in terms of Export of Services Rules was not the subject matter of said decision. The Export of Services Rules, 2005, being destination based consumption tax are in accordance with the declaration of law by the Hon'ble Supreme Court. (iv) Inasmuch as the appeal No. ST 828/2010 was not argued by both the sides, the same can be listed for final disposal even though issue involved is identical. (v) Having held that services involved were export of services, the same are not liable to be sustained against the appellants. Files to be placed before original Bench for recording of final majority order." 8. In the case of M/s. Barco Electronics Systems Pvt Ltd. Vs. CC CCE & ST, NOIDA [ 2016 (45) STR 532 (Tri-All) also this Tribunal has held similarly as follows: "11. Having considered the rival contentions, we find that the issue herein is squarely covered by the precedent ruling of this Tribunal in the case of Microsoft Corporation (I) Pvt. Ltd. (supra). We also take notice of the fact of the C.B.E. & C. Circular No. 111/5/2009-S.T., dated 24-2-2009, the relevant portions which are q....
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....a particular category of service as mentioned in sub-rule (1) of Rule 3. For example, under Architect service (a category I service [Rule 3(1)(i)]), even if an Indian Architect prepares a design sitting in India for a property located in U.K. and hands it over to the owner of such property having his business and residence in India, it would have to be presumed that service has been used outside India. Similarly, if an Indian event manager (a category II service [Rule 3(1)(ii)]) arranges a seminar for an Indian company in U.K. the service has to be treated to have been used outside India because the place of performance is U.K. even though the benefit of such a seminar may flow back to the employees serving the company in India. For the services that fall under Category III [Rule 3(1)(iii)], the relevant factor is the location of the service receiver and not the place of performance. In this context, the phrase 'used outside India' is to be interpreted to mean that the benefit of the service should accrue outside India. Thus, for Category III services [Rule 3(1)(iii)], it is possible that export of service may take place even when all the relevant activities take place in India so ....