TaxTMI 
TaxTMI 
2022 (6) TMI 923
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....that the appellants are engaged in providing 'Business Support Service' and 'Management and Repair Service'; the appellants are Marketing of HAS Standard Model CNC Machine Tools and have entered into an agreement with HAAS Automation Inc. USA as per which the appellant receives payment towards the service so rendered to the foreign company in foreign exchange. Claiming that the services rendered by them are export of services and are not liable to service tax, the appellants have filed two refund claims of Rs.62,40,422/- and Rs.35,63,543/-, on 04.06.2009, for the years 2006-07 & 2007-08 and 2008-09 respectively. Revenue has issued show cause notices and rejected the refund claims on merits as well as limitation. On an appeal, Commissioner (....
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....ai 2018 ACR 132 CESTAT Mumbai. (vi) Ishwar Metal Industries Vs CCE, Jaipur (Service Tax appeal No.51834 of 2018, Final Order No.50064/2022 dated 28.01.2022.) (vii) Sunrise Immigration Consultants Pvt. Ltd. Vs CCE, Chandigarh-I (Service Tax appeal No.60065 of 2021, Final Order No.A/60858/2021 dated 14.06.2021. 4. Shri P. Rama Holla, learned Authorized Representative for the Department submits that the OIO and OIA are legal proper and justified; the activities undertaken by the appellants are not export and the refund claims are also hit by limitation, the appellants misrepresented that the services rendered by them are 'Business Support Services' whereas it is clear from the bills raised that they are 'Machine Commission....
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....e of facility signage, showroom display kits and other display and advertising materials described in the HAAS Factory Outlet manuals, Distributors shall obtain the prior approval of HAAS for any advertising and promotional materials not prepared by HAAS, which approval shall not be unreasonably withheld or delayed. The learned Counsel for the appellants submits that the amount received by them from their overseas principals is towards sales commission. 6. We find, however, on-going through the records of the case, that the original authority has gone through the bills and has given a clear finding that the bills raised were raised as follows: Year No. of bills raised Description mentioned in the Bill Amount equivalent to Ind....
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....India; in the instant case, the services are performed within India the same does not amount to export of services under the said Rule; accordingly, the services rendered are leviable to Service Tax; hence, question of filing of refund claim does not arise and the claim is liable for rejection for the entire period 2008-09, on merits. 8. We find that neither from the agreement nor from the records of the case, it is forthcoming as to whether the appellants have given any submissions countering the above claim. We also find that learned Counsel for the appellants did not counter the claim of the Department on this count and the learned Counsel has mainly focussed on his arguments on limitation. We find that either in the written submissio....
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....is no element of service rendered by the appellants to the overseas principals on this count. 10. Under the circumstances, we are of the considered opinion that the appellants have no case on merits as far as machine commissioning charges and office expenses are concerned. The learned Counsel for the appellants has taken us through the agreement. We find that there is no clause in the agreement about the payment of commissioning charges and office expenses though as a distributor the payment of commission is understandable. Moreover, we find that liability to service tax does not depend only on the wordings of the agreement and the essence of the agreement needs to be considered provided the other aspects of levy are decided. In case of ....