TaxTMI 
TaxTMI 
2024 (11) TMI 992
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....ernal shifting of timber logs unloaded by the vessels belonging to or chartered by such foreign based shipping lines, within the port area of Kandla and also to collect and remove bark of import timber log from such vessels so that these vessels can be loaded with export cargo from India. Internal shift involved movement of timber logs within port area from jetty open plots in docks. The segregation service was provided by the appellant in facts where the individual importers imported less than full load vessel, timber logs of different lots , sizes, quality etc. get mixed up with such timber logs are required to be segregated, sorted and staged before giving delivery to the respective importers. 1.2 The foreign shipping line had appointed the appellant to provide the service of segregation and internal shifting on their behalf to facilitate proper delivery of imported timber logs to the importers. Pursuant to the above the appellant had provided to foreign principals with service of segregation and internal shifting and submitted daily/progressive reports of delivery and raised final invoices in foreign convertible currency. The appellant was also roped in by the same foreign p....
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....(Tri.-Bang) * Cairn Energy India Pvt. Ltd., 2010 (19) S.T.R. 110 (T) * South India Corporation (Agencies Ltd., 2010 (17) S.T.R. 170 (T) * T. P. Roy Chowdhury & Co. Pvt. Ltd., 2010 (17) S.T.R. 58(T) * Hasan Haji & Co., 2010 (17) S.T.R. 43 (T) * Velji P & Sons (Agencies) P. Ltd., 2007 (8) S.T.R. 236 (T) [maintained by Hon'ble Supreme Court as reported at 2009 (13) S.T.R. J 31 (S.C.)] * H. K. Dave Ltd., 2008 (12) S.T.R. 561 (T) * Shreeji Shipping, 2014 (36) S.T.R. 569 (T) * Ashok International, 2016 (43) S.T.R. 430 (T) * Seaways Shipping Ltd., 2008 (12) S.T.R. 229 (T) * South India Corporation Ltd., 2008 (10) S.T.R. 484 (T) * Kinship Services (India) Pvt. Ltd., 2008 (10) S.T.R. 331 (T) * Lotus Shipping Ltd., 2015 (38) S.T.R. 1148 (T) * Konkan Marine Agencies, 2007 (8) S.T.R. 472 (T) * S. S. Maritime, 2010 (17) S.T.R. 346 (T) * Western India Shipyard Ltd., 2008 (12) S.T.R. 550 (T) * Vikram Ispat, 2008 (11) S.T.R. 639 (T) * VBC Exports Ltd., 2008 (10) S.T.R. 613 (T) * Kei-rsos Maritime Ltd., 2008 (11) S.T.R. 412 (T) 3. S....
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....med outside India; (iii) specified in clause (105) of section 65 of the Act, but excluding‚- (a) sub-clauses (zzzo) and (zzzv); (b) those specified in clause (i) of this rule except when the provision of taxable services specified in sub-clauses (d), (zzzc), (zzzr) and (zzzzm) does not relate to immovable property; and (c) those specified in clause (ii) of this rule, when provided in relation to business or commerce, be provision of such services to a recipient located outside India and when provided otherwise, be provision of such services to a recipient located outside India at the time of provision of such service: Provided that where such recipient has commercial establishment or any office relating thereto, in India, such taxable services provided shall be treated as export of service only when order for provision of such service is made from any of his commercial establishment or office located outside India: Provided further that where the taxable service referred to in sub-clause (zzzzj) of clause (105) of section 65 of the Act is provided to a recipient located outside India, then such taxable service sha....
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....reproduced here as under : "Export of Services Rules, 2005 3. Export of taxable service.- (i) Export of taxable service shall, in relation to taxable services,- .......... (ii) specified in sub-clauses (a),......(zzh), (zzi),..... and (zzzp) of clause (105) of Section 65 of the Act, be provision of such services as are performed outside India : Provided that where such taxable service is partly performed outside India, it shall be treated as performed outside India; (2) The provision of any taxable service [specified in sub-rule (1)]* shall be treated as export of service when the following conditions are satisfied, namely:- (a) such service is delivered outside [provided from]* India and used outside India; and (b) payment for such service [provided outside India]* is received by the service provider in convertible foreign exchange. *[added or substituted w.e.f. 1-3-2007] #{deleted w.e.f. 1-6-2007} 8. Reading of the above provisions of Export of Services Rules, 2005 (hereinafter referred to as "the Rules") makes it amply clear that the taxable service specified in sub-clause (zzh) of....
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....al held as under :- "7. We have given careful consideration to the submissions. It is not in dispute that 'Technical Inspection and Certification Service' and 'Technical Testing and Analysis Service' were taxable services during the period of dispute (1-7-2003 to 19-11-2003). It is, again, not in dispute that these very services were provided by the appellant to their clients located abroad. Both sides have agreed that the said services are performance-based services falling in category (II) mentioned in the Board's Circular No. 111/05/2009-S.T. The Circular is clarificatory and hence must have retrospective operation. This very circular clarified that the phrase "used outside India" was to be interpreted to mean that the benefit of the service should accrue outside India. This Circular was considered by this Tribunal in KSH International Pvt. Ltd. v. Commissioner (supra). In that case, the appellant had procured purchase orders in India for suppliers of goods located abroad, and transmitted the same by courier to the said suppliers. Acting upon those supply orders, the suppliers exported the goods to buyers in India and directly collected payment from them. Upon receipt o....
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....ported by the case law discussed above. 8. The view taken by the Central Board of Excise and Customs vide Circular No. 66/2005-S.T., is that export of services would continue to remain tax-free even after withdrawal of Notification No. 6/94-S.T., dated 9-4-1999. The Board was examining the effect of withdrawal of Notification No. 6/99-S.T. This Notification exempted the taxable service specified in Section 65(48) of the Finance Act, 1994 provided to any person, in respect of which payment was received in India in convertible foreign exchange, from payment of service tax. The Notification, in a proviso, laid down that nothing contained in the Notification shall apply when the payment received in India in convertible foreign exchange for taxable services rendered was repatriated from or sent outside India. It was this Notification which was rescinded by Central Government by issuing Notification No. 2/2003-S.T., dated 1-3-2003. The Board was called upon to consider representations received from service sector, wherein an apprehension was raised that export of service would be affected adversely in the international market on account of withdrawal of Notification No. 6/99-S.T....
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....se. 11. In the result, the impugned order is set aside and this appeal allowed." 4.4 The above judgment was challenged by the Revenue Before the Hon'ble Bombay High Court, wherein by the judgment reported as Commissioner of Service Tax, Mumbai-II vs. SGS India Pvt Ltd - 2014 (34) STR 554 (Bom.) dismissed the revenue's appeal. The relevant portion is reproduced below:- "15. Mr. Sridharan therefore submits that the principle that Service Tax is a destination based consumption tax is in conformity with international practice. It has been accepted internationally in order to avoid double taxation. It has also been recognized by the judgment of the Hon'ble Supreme Court in the case of All India Federation of Tax Practitioners v. Union of India reported in 2007 (7) S.T.R. 625. Mr. Sridharan therefore submits that the Appeal does not raise any substantial question of law and deserves to be and should be dismissed. Mr. Sridharan submits that in any case, there was no suppression of facts. The respondent was under a bona fide belief that it had exported services and therefore the extended period has been erroneously invoked. The demand has been held to be barred by limi....
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....the report was delivered to the foreign client. Since the delivery of the report to the foreign client was considered to be an essential part of the service that the demand of Service Tax was set aside. 20. This view of the Tribunal is in accord with the statutory provision and particularly the circular relied upon. In the circular which is relied upon and at page 17 of the paper book, the Government of India in the Ministry of Finance (Department of Revenue) exempted the taxable service specified in sub-section (48) of Section 65 of the Finance Act, 1994 provided to any person in respect of which payment is received in India in convertible foreign exchange, from the whole of the Service Tax leviable thereon under Section 66 of the said Act. The proviso to this exemption notification is not attracted to facts of our case. It is conceded before us that the respondent received payment in India in convertible foreign exchange and that this payment is not repatriated by the respondent from or sent outside India. 21. The definition of the term taxable service is inclusive. It also includes technical testing and analysis [see Section 65(106)(zzh)]. By Section 65(106), t....
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.... respondent in convertible foreign currency in respect of services rendered by it in India to its foreign clients. Though the show cause notice refers to the circulars, what is apparent from the judgment of the Hon'ble Supreme Court in the case of All India Federation of Tax Practitioners v. Union of India, 2007 (7) S.T.R. 625 that Service Tax is a tax on each activity. When it comes to a Service Tax on professions, the services rendered are of advise and hence, the Hon'ble Supreme Court with regard to the nature of the tax concluded that it is rendered by a Chartered Accountant, for example when he advises his client or audits his account. Similarly, a cost accountant charges his client for advise as well as doing his work of costing. For each transaction or contract, Chartered Accountant/Cost Accountant renders professional based services. However, Mr. Sridharan submits if the taxable event is the provision of services, then, the place where the services have been rendered is of significance. The services will be taxable only if they are provided within India. Mr. Sridharan submits that Service Tax is a destination based consumption tax and therefore, it is not applicable on expo....