TaxTMI 
TaxTMI 
2024 (8) TMI 959
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....Central Excise(Appeals-II) Bangalore. 2. Briefly stated the facts of the present case are that the appellants are engaged in providing as well as receiving taxable service under the categories of 'Maintenance or Repair Services', 'Erection, Commissioning or Installation Services' and 'Business Auxiliary Services'(BAS, for short). During the relevant period 15.03.2005 to 31.03.2006 (appeal No.ST/1898/2010), they have received 'indent commission' from the overseas holding company M/s. Sartorius AG Germany. Alleging that the amount received by the appellant fall under the category of Business Auxiliary Service, show-cause notice was issued to them for recovery of the service tax amount of Rs.7,36,222/- with interest and penalty. Similarly in ....
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....the holding company in Germany and not its customers in India. * That the Appellants did not have any privity of contract / contractual relationship with the clients of the holding company in India. The client of the Appellants was its holding company abroad since the said holding company compensated the Appellants for such services (by way of an indent commission, which was the consideration for the BAS services provided). The Appellants did not receive any consideration from the customers of the Appellants' holding company. * That the BAS provided by the Appellants, as brought out in the foregoing paragraphs, satisfied all the conditions of 'export of services' under Rule 3(3)(i) of Export Rules thereof since the same has been 'provid....
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....mpany in India in terms of the proviso to Rule 3(3)(i) of the Export Rules, even then the Appellants had satisfied all conditions thereof for 'export of services' since - the service is delivered outside India and used in the business outside India, considering that the foreign holding company has processed the orders of such customers and made sale to such customers; payment has been received by the Appellants in convertible foreign exchange, which fact has not been disputed by the Respondent. * That the issue at hand is covered by the judgments/decisions of the Hon'ble Bombay High Court in CST v. A.T.E. Enterprises Pvt. Ltd., [2018 (8) GSTL 123 (Bom.)]; of the Hon'ble Delhi High Court in Verizon Communication India Pvt. Ltd. v. ACST, [2....
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....subsequently, that by itself would not attract the extended period of limitation. Reliance is placed upon Dabur India Ltd. v. CST, 2015 (39) STR 1021 (T) and CST v. Traffic Manager, Mumbai Port Trust, 2015 (37) STR 993 (T) for the same; that the 'indent commission' received by the Appellants was disclosed in their books of accounts/financials. Therefore, suppression of facts with the intent to evade payment of tax cannot be alleged; that the above issue came to be settled only by the Larger Bench of this Hon'ble Tribunal in Arcelor Mittal Stainless (I) Pvt. Ltd. v. CST, (2023) 11 Centax 269 (Tri.-LB), after a series of conflicting decisions by different Benches of the Tribunal; that merely because the Revenue takes a different position or r....
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.... the Appellant received BAS from abroad. Merely because the Appellant admitted its liability and paid the same does not mean that the same was taxable. There is no estoppel against the law. For this reason also, penalty under Section 78 of the Act could not have been imposed in respect of allegation (c) above. The tax and interest paid by the Appellant therefor ought to be refunded to the Appellant. * That in any case, penalties could not have been imposed both, under Sections 76 and 78 of the Act, since the proviso inserted in Section 78 of the Act with effect from 10.05.2008, which provides that "provided also that if the penalty is payable under this section, the provision of Section 76 shall not be attracted", is clarificatory in natu....
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....ting view on the question whether Arcelor Mittal Stainless (I) Pvt. Ltd., a subsidiary of Arcelor Mittal Stainless International, Paris, France, who procures sale orders for the products manufactured by companies in India and abroad liable to discharge service tax on such commission. Department alleged that since Arcelor Mittal Stainless (I) Pvt. Ltd. received the commission in return of procuring orders on Indian manufacturers, the service would not qualify as an export service under the Export of Service Rules, 2005 and accordingly, demanded service tax from Arcelor India. After analysing the judgments of the Hon'ble Delhi High Court in Verizon Communication India Pvt. Ltd. Vs. Asst. Commissioner, Service Tax, Delhi-III [2018(8) GSTL 32(D....