TaxTMI 
TaxTMI 
2024 (1) TMI 826
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....ated 17.04.2009 proposing demand of Service tax on the Appellant on following services from the period between 01.10.2003 to 31.03.2008. Marketing support services received from foreign service provider under Business Auxiliary Services 'BAS'. Commission paid to foreign service provider for market support under BAS. Convention services under 'convention centre service'. Subscription paid to institutions based outside India under 'commercial training or coaching service'. Software upgradation and its maintenance from foreign based service providers on software installed in system in India under 'Management, Maintenance or Repair Service'. 2.2 The appellant filed reply to the show cause notice dated 17.04.2009. 2.3 After following due process, the Adjudicating Authority vide the impugned order has confirmed the demand of service tax on the appellant from period on and after 01.01.2005 to 31.02.2008 and dropped the demand of service tax prior to 01.01.2005 as shown in the table below:- Nature of Service Demand dropped Demand upheld in OIO (01.01.2005 to 31.03.2008) Marketing support services received from foreign service provider under B....
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.... be sustained without specific mention of the clause under which the demand is confirmed on the assessee. For this submission, she relied upon the following decisions: Joshi Auto Zone Pvt. Ltd. vs. Commissioner of Service Tax, Chandigarh 2023 (12) TMI 1069- CESTAT CHANDIGARH HSBC Investdirect (India) Ltd. Versus Commissioner of Service Tax, Mumbai 2014 (8) TMI 582-CESTAT MUMBAI Syniverse Mobile Solutions Pvt Ltd., (Earlier Transcibernet India Pvt Ltd.) vs Commissioner of Customs, Central Excise & Service Tax, Hyderabad -IV Service Tax Appeal No. 1319 of 2010, order dated 31.05.2023 Balaji Enterprises vs Commissioner of Central Excise and Service Tax, Jaipur-1 2020 (33) G.S.T.L. 97 (Tri. - Del.) United Telecoms Ltd. vs Commissioner of Service Tax, Hyderabad 2011 (22) S.T.R. 571 (Tri. - Bang.) Palecha Trade Services Pvt. Ltd vs. Union of India through, Commissioner of Central Excise, Jaipur-I 2018 (14) G.S.T.L. 351 (Raj.) Fulchand Tikamchand vs. Commissioner of C. Ex. & Cus., Nagpur 2016 (42) S.T.R. 1063 (Tri. - Mumbai) 4.3 She further submits that the activities undertaken by the Appellant in the transaction do not fall under the category of 'Business Auxiliary Servic....
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....sel submits that the impugned order has confirmed the demand on receipt of coaching and training service in respect of subscription paid to institution located outside India. She further submits that it is not disputed that the services in question are performed outside India and in terms of Rule 3(ii) of The Taxation of Services (Provided from Outside India and Received in India) Rules, 2006 ('Import Rules'), receipt of such services shall qualify as import only if the services are performed in India. For this submission, she relied upon the following case laws: Firmenich Aromatics India Pvt Ltd. 2018 (10) TMI 655-CESTAT-AHD ABB Ltd. v. Commissioner - 2019 (24) G.S.T.L. 55 (Tri-Bang.) CCE v. Maersk India Pvt. Ltd. 2015 (40) STR 1059 (Born.) She further submits that the demand in respect of period prior to 18.04.2006 is liable to be set aside for the reason that Section 66A of the Finance Act was introduced from the said date. 4.10 As regards, the demand of service tax of Convention Centre Services, she submits that the entire demand in respect of convention centre services pertaining to the period prior to 18.04.2006 when Section 66A was introduced and therefore, t....
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....vention of any of the provisions of this Act or Rules with an intent to evade the payment of tax. She further submits that the Adjudicating Authority has clearly failed to establish any of these ingredients on the part of the Appellant. She further submits that the entire transaction was revenue neutral, as the Appellant would be entitled to take the credit of the service tax paid under reverse charge and therefore, the mala fide intention cannot be alleged in such transactions and extended period cannot be invoked. 4.15 She further submits that when the demand itself is not sustainable, the demand of interest and penalty also not sustainable. 5. On the other hand, the Learned Authorized Representative reiterated the findings in the impugned order. 6. We have heard the Ld. Counsel for the appellant and perused the material on record and also the decisions relied upon by both the parties, first, we take up the demand of service tax amounting to Rs. 41,12,109/- confirmed under Marketing support services received from foreign service provider under 'Business Auxiliary Service'. In this regard, it is relevant to reproduce the definition of 'Business Auxiliary Service' as under:- ....
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.... by various benches of the Tribunal and it has been consistently held by the Tribunal that the demand cannot sustain without specific mention of the clause under which demand is confirmed on the assessee. In this regard, we may refer to the decision of this Tribunal in the case of Joshi Auto Zone Pvt. Ltd. cited (supra) wherein the Tribunal has considered this issue and the relevant findings of the Tribunal are reproduced herein below:- "9. After considering the submissions of both the parties and perusal of material on record, we find that neither in the show cause notices, nor in the impugned order, the Ld. Commissioner has mentioned any specific clause of Section 65 (19) of Business Auxiliary Service (BAS) under which service tax demand is sought to be made. We also find that the Tribunal has consistently taken the view in the decisions cited (supra) that specific clause of 'Business Auxiliary Service' is required to be mentioned and if not mentioned, the entire demand is liable to be set-aside. In this regard, we may refer to the decision of the Tribunal in the case of Syniverse Mobile Solutions Pvt. Ltd. vs. Commissioner of Customs, Central Excise & Service Tax, Hyderaba....
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....Clause 105 of Section 65 and observed as follows:- "The lower authority has obviously not followed principles detailed supra and clearly erred in holding that the services rendered by the appellants are classifiable under both "Business Auxiliary Service" as well as "Business Support Service". Having reproduced the findings of the Commissioner in the impugned order and having observed that "I am in agreement with the aforesaid findings of the Commissioner", there was no need to come to such a weird conclusion of classifying the service under more than one head."[emphasis supplied] In the recent decision of CESTAT, Delhi in the case of Balaji Enterprises Vs CCE and ST, Jaipur [2020(33) GSTL 97 (Tri-Del)] the Bench has considered in the case of Collector Vs Pradyumna Steel Ltd., [1996 (18) ELT 441 (SC)] which is cited by the Learned AR in that case and the Hon'ble Bench has held as under: 28. Likewise, the decision of the Supreme Court in Collector of Central Excise, Calcutta v. Pradyumna Steel Ltd. [1996 (82) E.L.T. 441 (S.C.)] would also not come to the aid of the Department. This decision holds that mere mention of a wrong provision of law, when power that has been exercise....
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....as performed outside of India. Therefore, there cannot be any liability of tax. The appeal on this count is allowed." 7.1 Similarly, in the case of ABB Ltd. cited (supra), the Tribunal has considered this issue as held as under:- "Further as far as commercial training or coaching services are concerned, the Learned Counsel submitted that the appellant had made the payment to M/s. ABB Technology Ltd. Zurich, Switzerland in connection with the participation of the employees of the appellants in a seminar conducted by the foreign company at a place outside India. Appellant has also submitted that 4 of their employees attended IMD Finance & Business Control Seminar from 4-3-2007 to 16-3-2007 at Lusanne conducted by M/s. ABB Ltd., Zurich and the appellant has paid in aggregate Rs. 15,69,846/- to the foreign company. The seminar was exclusively conducted outside India. Further, we find that appellant has also attached the copies of the certificates showing the payment for the seminar which were conducted outside the country. In view of these facts, we are of the opinion that since training and coaching service happened outside India, the appellants were not liable to pay Service Tax ....