TaxTMI 
TaxTMI 
2024 (8) TMI 959
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....0), 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 appeal No.ST/1899/2010, they have received 'indent commission' from their holding company during the period 15.03.2005 to 31.03.2006 but failed to discharge service tax; accordingly show-cause notice was issued to them for recovery of the service tax of Rs.21,85,250/- along with interest and penalty. Both the notices have been adjudicated by the adjudicating authority under respective orders confirmed the demands with interest and imposed penalties under Section 76, 77 and 78 of the Finance Act, 1994 against the appellants. Aggrieved by the said orders, the appellants filed appeals before the learned Commissioner(Appeals) who in turn rejected the same. Hence, the present appeals. 3. Learned advocate appearing for the appellants has submitted assailing the Order as:- • That the Appellants procured orders from the Indian companies ....
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....its of these services accrue outside India. In all the illustrations mentioned in the opening paragraph, what is accruing outside India is the benefit in terms of promotion of business of a foreign company." The BAS provided to the foreign holding company is, therefore, 'export of services', considering that it is the business of the said holding company in Germany that it being promoted in India. • That even if it is considered that the Appellants were a 'commercial or industrial establishment' or 'office' of the German holding company 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., [....
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....provision differently, is no ground to invoke the extended period of limitation. This is notwithstanding that the Revenue may finally prevail in its interpretation of the statutory provisions and the assessee may not. Reliance is placed upon the judgment of the Delhi High Court in Pr. CGST v. Emaar MGF Land Ltd., [2023 (74) GSTL 212 (Del.)] for the same. • That equivalent penalty under Section 78 of the Act could not to have been imposed considering that there is no evidence on record to show that there was suppression of facts with the intention to evade payment of tax. It is settled law that merely because certain amounts were paid prior to adjudication, by itself, does not mean there was suppression of facts with the intention to evade payment of tax. That equivalent penalty could not have been imposed in respect of allegation (c) in the SCN considering that the same pertained to 'import of BAS' from a foreign service provider during the period 09.07.2004 to 31.03.2006. It is settled law laid down by the Hon'ble Bombay High Court in Indian National Shipowners Association v. Union of India, [2009 (13) STR 235 (Bom.)] and a host of other decisions that a service recip....
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.... case of Arcelor Mittal Stainless (I) Pvt. Ltd. Vs. CST, Mumbai-II [(2023) 11 Centax 269 (Tri. LB)]. In the said case, the Larger Bench confronted with the conflicting 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(Del.)] which approved the view taken by the Paul Merchants Ltd. Vs. CCE, Chandigarh [2012(12) TMI 424-CESTAT, Delhi (LB)] case and other judgments on the subject, the Larger Bench observed as follows:- 54. The four issues raised in the reference order have been dealt with extens....