TaxTMI 
TaxTMI 
2020 (12) TMI 701
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....-11. 3. The appellant is engaged in the business of provision of services under the category 'business auxiliary service' [BAS] and 'transport of goods by road [GTA]. The appellant represents foreign companies in India who do not have any office in India and promotes the business of such foreign companies. The work undertaken by the appellant for foreign companies, to a large extent, involves procuring orders from Indian clients on behalf of the foreign companies, giving technical support in respect thereof to the foreign companies, assisting the foreign companies for liasioning, preparing documents, obtaining tenders and negotiating the tenders on behalfof the foreign companies. The said services provided by the appellant are classifiable under 'BAS'. 4. According to the appellant, these services qualify as export of services under the provision of Export of Service Rules 2005 [2005 Rules] and so no service tax was paid by the appellant during the relevant period from April 2007 to March 2011. 5. In addition to the provision of such services to the foreign companies, the appellant also paid commission to foreign agents for receiving services. 6. Proceedings were, howev....
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....med. The findings, in short on this issue, are as follows: (i) Upto February 27, 2010, the 2005 Rules mandated that services must be provided from India and used outside India. The appellant was providing services in relation to procurement of orders from customers located in India. These services cannot be delivered outside India and therefore, the appellant does not satisfy the condition of services being 'used outside India'. In this regard, reliance was placed on the Circular dated May 13, 2011; (ii) For the period February 27, 2010, the condition in relation to service being used outside India has been omitted. However, since the appellant could not substantiate the quantum of services provided after February 27, 2010 and the consideration received thereon, service tax demand of Rs. 71,190/- has been confirmed. 10. With respect to the Commission paid to foreign agents, the Commissioner has confirmed the demand as documentary evidence for the claims made by the appellant had not been submitted. 11. This appeal deals with service tax on foreign commission received for services rendered to foreign companies and on commission paid to foreign agents. 12. Shri B.L. Na....
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....Department have been considered. 15. The first issue is regarding the levy of service tax on the commission received from foreign companies has recently been decided against the Revenue by this Bench in M/s Involute Engineering Pvt. Ltd. [Service Tax Appeal No. 55146 of 2013], both with regard to the period prior to February 27, 2010 and w.e.f. February 27, 2010. The relevant portion of the decision is reproduced below: 18. A perusal of rule 3 (2) of the 2005 Rules, as it existed prior to February 27, 2010, would indicate that the provision of any taxable service specified in sub-rule (1) of rule 3 shall be treated as export of service when the following two conditions are satisfied: (a) such service is provided from India and used outside India; and (b) payment of such service is received by the service provider in convertible foreign exchange. 19. There is no dispute in the present appeal that the payment for the service was received by the appellant in convertible foreign exchange. The dispute is whether the service was provided from India and used outside India. The Commissioner has observed, for the period prior to February 27, 2010, that the appellant was providing s....
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....he Commissioner, in regard to the period post February 27, 2011 has recorded a finding that though the condition relating to service being used outside India has been omitted, but the appellant could not substantiate the quantum of services provided after February 27, 2010 and the consideration received thereon and so the entire demand has to be confirmed. 34. As noticed above, the only requirement after the amendment in rule 3 (2) of the 2005 Rules is that the service recipient should be situated outside India and consideration should be received in foreign currency. Both the conditions stand satisfied. Even otherwise, for the period prior to February 27, 2010, it has been held that no service tax could be levied. Thus, it was immaterial as to whether the appellant was able to substantiate the quantum of services provided after February 27, 2010 and the consideration received thereon. . 16. The aforesaid decision in Involute Engineering placed reliance upon the following decisions: (i) GAP International Sourcing (India) Pvt. Ltd. vs. Commissioner of Service Tax [2014-TIOL-465-CESTAT-DEL]; (ii) Commissioner of Service Tax, Mumbai-VI vs. A.T.E Enterprises Private Limited [201....