TaxTMI 
TaxTMI 
2019 (10) TMI 1107
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....mmon order. These appeals were earlier disposed by this Tribunal by way of remand vide Order FO/78363-78364/2017 dated 29.11.2017 with the observation that DGCEI is not the competent authority to issue notice, as held by the Hon'ble Delhi High Court in the case of Mangali Impex Ltd vs. UOI 2016 (335) ELT 605 (Del). The Revenue being aggrieved by the said order had filed an appeal the Hon'ble High Court of Calcutta. The Hon'ble High Court vide Order dated 16.01.2019, while noting the fact that aforesaid decision of the Delhi High Court has been stayed by the Apex Court, has directed this Tribunal to pass a reasoned order. These appeals are accordingly taken up for disposal on the basis of law as on date without taking into consideration the ....
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....d in the impugned show cause notice for the subsequent period March 2007 to June 2007, against which portion the Revenue is in Appeal bearing no. ST/50/2009. 3. Dr. Samir Chakraborty, Sr. Advocate, and Shri Rajeev Agarwal, CA, appeared for the assessee and Shri S. S. Chattopadhyay, A.R. appeared for the Revenue. 4 At the outset, the Ld. Counsels for the assessee submitted that the Export of Services Rules, 2005, as introduced in the statute vide Notification no. 9/2005-ST dated 03.03.2005, w.e.f. 15.03.2005 has been amended from time to time. He took us through the various amendments made in the Export Rules as also enclosed in page nos. 79 to 85 of the appeal paper book. He submitted that the provision contained in Export Rules from 15....
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....ertible foreign currency. It is the submission of the Ld. Counsels for the assessee that the assessee has been appointed to act as a non-exclusive representative of the Foreign Company in India and to solicit orders from customers in Indian Territory for the purchase of products of the Foreign Company and to provide marketing support services in connection therewith. All the orders collected by the assessee were forwarded to Foreign Company and there is no allegation or finding in the impugned show cause notice or order to the contrary. Whether or not the orders procured by assessee would be accepted by the Foreign Company is the sole discretion of the Foreign Company. The contracts with the approved customers were also to be arranged and c....
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....mand dropped by the Ld. Commissioner be also demanded for which the Revenue has filed the appeal. 6. Heard both the sides and perused the appeal records. 7. We find that the Ld. Commissioner in his impugned order has accepted that the services provided by the assessee have been used outside India and that the payment for the said services have been received in convertible foreign exchange. He has however observed that since the products of the Foreign Company have been marketed or sold to customers in India, the services are not delivered outside India. 8. We find that the identical issue has been dealt by the Tribunal in Airbus Group India Pvt. (Supra) for the period 2006 to 2011 wherein it has been held that the services provided by....
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....for taxation as services provided within India. We also noticed that the learned Original Authority brushed aside the various decided cases relied upon by the appellant with cryptic remarks. In fact he also recorded that the Tribunal's decision in favour of appellant in two cases have not reached finality as the SLPs are pending before Hon'ble Supreme Court. 5. On the first issue relating the appellants liability under BAS it is now a well settled legal position that the service involved is in fact exported out of India and there is no service tax liability. In M/s. Paul Merchants Ltd. v. CCE, Chandigarh reported in 2013 (29) S.T.R. 257 (Tri. - Del.) it is held that what constitutes export of service is to be determined strictly w.r.t. t....
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....bility of the appellant on these services is not legally sustainable." Identical views have been taken in the case AVL India Ltd (Supra) wherein it has been held that :- "8.On the first issue, we find that the services rendered by the respondent were in relation to procuring orders and promoting products, of foreign suppliers. Admittedly, the said services fall under the category of "BAS". However, it is a well settled legal position that the nature of service rendered by the respondent is consumed by the foreign supplier of goods. The benefit is directly accruing to such foreign entities. The Tribunal held that in respect of "Business Auxiliary Service" (Category III Services), the person to whom the benefits accrued, has to be consid....