TaxTMI 
TaxTMI 
2008 (10) TMI 36
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....ded yarn for export. For export of their finished product, they availed the services of middlemen abroad who help them in procuring the export orders and for which they received commission from the Appellants. The service received by the Appellants from the middlemen abroad is 'Business Auxiliary Service' covered by Section 65(19) of the Finance Act, 1994. Since the foreign middlemen from whom the service of help in procuring export orders is being received by the Appellants do not have any office or business establishment in India, the Revenue was of the view that during the period from July,04 to Nov,05, during which this service was received, the Appellant, being recipient of the service from service providers not....
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....ndered by persons outside India from off shore locations. Such import of taxable service became taxable only w.e.f.18.4.06 when Section 66A was added to the Finance Act,1994 and Taxation of Services (provided from outside India and received in India), Rules 2006 were issued. The period of dispute in this case is from July-04 to March-05 and in view of this, service tax, liability cannot be fastened on the Appellants. In this regard, he cited this Tribunal's judgments in the case of Foster Wheeler Energy Ltd. vs CCE, Vadodara-II reported in 2007(7)STR.443 and CCE, Raipur vs Jindal Steel & Power Ltd. reported in 2008(11)STR.14. (2) Before demanding service tax under the category of 'Business Auxiliary Service' (commission agent....
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....e purpose of Assessment & Collection of Service Tax. Service Tax Rules can, therefore, be resorted to only after the charge is created and fixed. Without the charging section, the rules cannot create or fix a charge. In this regard, reliance is placed on Supreme Court's judgment in the case of Laghu Udyog Bharti vs UOI reported in 1999 (112)ELT.365(SC). 2.2 Shri Sumit Kumar, Learned Departmental Representative, made the following submissions: (1) In view of Hon'ble Supreme Court's judgment in the case of Kerala State Electricity Board vs CCE, Thiruvananthapuram reported in 2008 (9)STR.3(SC), the Appellants as recipient of taxable service from a foreign/off shore service provider, not having any office or establishmen....
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.... of Auxiliary Service' as given under Section 65(19) of the Finance Act,1994, among other things, covered any service in relation to promotion or marketing or sale of goods produced or provided by or belonging to the client. The middlemen abroad find the prospective buyers and their requirement and inform the Appellants about the same. Thus, the middlemen abroad are providing to the Appellants a service in relation to the marketing or sale of the goods produced by them. Therefore, the service being received by the Appellants is covered by the definition of "Business of Auxiliary Service". 4. Another point raised by the appellant is that the service is being provided by persons who are from outside India, not having any office or business....
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....resentative that in view of Hon'ble Supreme Court's observations in para 14 of its judgment in the case of Kerala State Electricity Board vs CCE, Thiruvananthapuram reported in 2008 (9) STR.3(SC), the Appellants as recipient of taxable service from off shore services providers not having any office in India, will be liable to pay the service tax. We do not agree with this contention, as in the case of Kerala State Electricity Board(supra) the Appellants by virtue of their agreement with the foreign service providers were liable to pay service tax in terms of the provisions of the proviso to sub-rule (1) of Rule 6 of the Service Tax Rules,1994 and Hon'ble Supreme Court's judgment is in the context of Kerala State Electricity Boar....