TaxTMI 
TaxTMI 
TaxTMI 
2025 (8) TMI 938
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..... Of 2025 Arising Out Of Diary No.38417 Of 2019), Civil Appeal No.2634 Of 2020, Civil Appeal Nos.3546-3549 Of 2020, Civil Appeal No. Of 2025, (Arising Out Of SLP(C) No. Of 2025 Arising Out Of Diary No.24028 Of 2020), Civil Appeal No. 2424/2022, Civil Appeal No. Of 2025 (Arising Out Of SLP (C) No.26382 Of 2023) Civil Appeal Nos.12468-12471 Of 2024. For the Appellant(s): Mr. V. Raghuraman, Sr. Adv., Mr. Anand Sukumar, AOR, Mr. S. Sukumaran, Adv., Ms. Sandhya Raghuraman, Adv., Mr. Bhupesh Pathak, Adv., Mrs. Ruche Anand, Adv., Mr. Vikramjit Banerjee, A.S.G., Ms. Nisha Bagchi, Sr. Adv., Mr. Gurmeet Singh Makker, AOR, Mr. Sughosh Subramanyam, Adv., Mr. Udai Khanna, Adv., Mr. Siddhartha Sinha, Adv., Ms. B. Sunita Rao, Adv., Ms. Seema Bengani, Adv., Mr. V. Sinha, Adv., Mr. B. Krishna Prasad, AOR., Mr. Mukesh Kumar Maroria, AOR For the Respondent(s): Mr. Nishant Shah, Adv., Mr. Kumar Visalaksh, Adv., Mr. Udit Jain, Adv., Ms. Virangana Wadhawan, Adv., Ms. Bhargavi Shukla, Adv., Mr. Abhishek Vikas, AOR, M/S. Khaitan & Co., AOR, Mrs. Vanita Bhargava, Adv., Mr. Ajay Bhargava, Adv., Ms. Nandita Chauhan, Adv., Mr. Nishant Shah, Adv., Mr. Kumar Visalaksh, Adv., Mr. Udit Jain, Adv., Ms. Virangana....
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....service tax is not payable by the assessees on such services so exported, vide Rule 4 of the Export of Service Rules, 2005 ("Rules", for the sake of brevity). It has also held that the assessees had rightly availed payment of CENVAT credit on inputs and input services used for providing such services vide Rule 5 of the Rules. 3. The period under consideration in these appeals range from the year 2003 till the year 2014. During this period, there were several amendments made to the law governing the taxability of export of services, which can be discussed at this stage itself. 4. The policy governing taxability of export of service was initiated in the year 1999 and in the year 2003, it was reiterated. Since service tax is a destination-based consumption tax, services that were exported out of India were not meant to be taxed. The benchmark in the year 1999 was, whether payment was received in convertible foreign exchange. Ultimately, in the year 2010, the benchmark again came to be fixed as receipt of payment in convertible foreign exchange. 5. A brief outline of the amendments made from the year 1999 till 2012 are highlighted as under: I. From 1999 to 2003: 5.1 During the per....
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....r such service is received in convertible foreign exchange. The controversy in these cases relate to category (iii) services, namely, whether such services were delivered or used or consumed outside India; and partially to category (ii) services, i.e., whether such services were wholly or partly performed outside India. 5.5 Rule 3 of the Rules underwent several amendments from the year 2005 till 2010, which are extracted as under: 15.03.2005 to 15.06.2005 "Rule 3 - Export of taxable service. ... (3) in relation to taxable services, other than, - (i) .... (ii) ... (i) such taxable services which are provided and used in or in relation to commerce or industry and the recipient of such services is located outside India: Provided that if such recipient has any commercial or industrial establishment or any office relating thereto, in India, such taxable services provided shall be treated as export of services only if - (a) order for provision of such service is made by the recipient of such service from any of his commercial or industrial establishment or any office located outside India; (b) service so ordered is delivered outside India and used in business outsid....
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....ied) 01.03.2007 to 26.02.2010 "Rule 3 - Export of taxable service. ... (2) The provision of any taxable service shall be treated as export of service when the following conditions are satisfied, namely: (a) such service is provided from India and used outside India; and (b) payment for such service is received by the service provider in convertible foreign exchange." (emphasis supplied) 27.02.2010 upto 30.06.2012 "Rule 3 - Export of taxable service. ... (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) [omitted] (b) payment for such service is received by the service provider in convertible foreign exchange." (emphasis supplied) III. Post 2012: 5.6 A new regime called the Negative List Regime was introduced in service tax on 01.07.2012. The Place of Provision of Service Rules, 2012 (for short "POP") was also introduced. 5.7 At the outset, we shall first refer to the brief sketch of the matters under consideration, as provided by learned counsel, as under: Appeal no. Period of Dispute Demand Category and Nature of Service Findings on Fac....
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....eement, (Page 186) which are in the nature of marketing and product support services with respect to the products sold by the overseas entity to Indian customers. Consideration for the service is received in India by Respondents in foreign currency. Business auxiliary service is Category III services where export status is decided based on the location of service recipient (Page 100) No dispute that services of Respondents are business auxiliary services falling under Category III (Page 101) Customer of Respondents for marketing and product support services is the entity in Singapore and not the person buying the software in India from the Singapore entity (Page 106) Service was delivered, used, consumed outside India as promotion was for products belonging to an entity abroad (Page 107) Service is provided to Singapore entity, to be used by them in Singapore, for the sale of their products in India and to provide product support service for their customers in India (Page 139) Services provided by Respondents to the entity in Singapore was delivered and used outside India - (Page 144) (Note: All page numbers are from Civil Appeal No. 5307/2015. Issues in other Civil Appeal....
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....es. The situs of the core computer system is at Germany / Spain. The CRS is accessed by the Travel Agents for booking tickets/hotels across the globe. The Respondent / AIPL supplements the functions of Amadeus, Spain, by preparing and transmitting the locally generated travel related data abroad for incorporation and synthesis into their core data base, so as to enable the Tour Operators [operating within India] to access the information / data stored in the core computer system abroad and to enable Amadeus, Spain to access information / data entered by the Tour operators. (Impugned Order at pg. 23-30 of Paper-book Vol I). There is no dispute that the consideration for the service is received by AIPL in convertible foreign exchange, from Amadeus Marketing. The Respondent/AIPL was also deemed eligible for exemption u/s 80HHE [Deduction of profits from export of computer software] and later u/s 10A/10B [deduction of profits and gains of a 100% Export Oriented undertaking derived from export of articles/things/computer software] of the Income Tax Act, 1961. Findings on services rendered by Respondent company (Impugned Order at para 21 - pg. 51 of Paper-book Vol I) Services prov....
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....2005, there is no liability of service tax - relied on Paul Merchant (Impugned Order at para 26 - pg. 50 of Paper-book Vol I) Entire Transaction explained from Page 393 - Page 396. C.A. No. 10885/2016 Commissioner of Service Tax Delhi III v. M/s Transcorp International Ltd. 07/2003-09-2007 Demand of Rs. 2,96,35,979 and penalty of Rs. 2,96,35,979 and Rs. 1000.- Money Transfer and Related Service Category III Business Auxiliary Services: Section 65(19)(ii) of the Finance Act, 1994 - Advertise and Promote the Money Transfer Service Activities of Respondent company fall within the scope of Export of Service Rules 2005, there is no liability of service tax - relied on Paul Merchant (Impugned order at para 8, Pp.29- 30 of Paper-book) C.A. No. 3692/2017 Commissioner of Service Tax Delhi IV vs. M/s Nortel Networks India Pvt. Ltd. 2005-06 to 2011-12 [Pg. D - Synopsis - Appeal Paper-book] Order-in-Original confirmed the demand on three counts: (1) Export of Service - Rs. 66,96,09,360/-; (2) Salary paid to Seconded employees is liable to service tax - Rs. 2,52,20,279/-; and (3) Non-payment of interest on delayed payment of tax - INR 94,24,777/- See Order-in Original dated 29....
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....1.2005 Rs. 3,63,91,232/- Category III Business Auxiliary Services: Section 65 (105)(zzb) of the Finance Act, 1994 - Sales promotion and Marketing services IBM India Ltd., as the business partner of M/s IBM World Trade Corporation, USA provided "Business Auxiliary Service" in the nature of canvassing, selling, obtaining orders, providing market support, to identify and promote IBM products in India and received a commission in freely convertible foreign exchange. [Impugned Order, Page 8, Paper Book-Vol-I] The issue is settled and thus the demand is unsustainable. [Impugned Order, Page 9-10, Paper Book-Vol-I] For the period March 2003 to November 2003, there being no dispute that the services are exported and payment has been received in foreign exchange, liability cannot be imposed for withdrawal of notification. [Impugned Order, Page 10-14, Paper Book-Vol-I] C.A. No. 9152/2017 Commissioner of Service Tax, New Delhi v. M/s Marubeni India Private Ltd. 2005-2010 (BAS) 2007-2009 and 2010-11 (Manpower) 2008-2011 (IT) BAS: Rs. 5,45,75,893/- Manpower Recruitment/Supply Agency: Rs. 4,76,196 /- Information Technology Service: Rs. 1,59,828/- Category - III Business Auxili....
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.... appeal before the Bombay High court. Appeal dismissed vide order dated 31.07.2017 Impugned Order at pg. 1-17 of Paper-book Vol I) Bifurcation of demand (OIO at pg. 193-194 of Paper-book Vol II) Category III Business Auxiliary Services: Section 65 (105)(zzb) of the Finance Act, 1994 (Impugned Order at pg. 2 of Paper-book Vol I) ATE Enterprises (Respondent) obtained orders for various types of machineries from various Indian Companies and passed them on to the supplier located outside India. The foreign supplier on receiving such orders delivers the goods to the Indian Companies. The Respondent received commission in Convertible Foreign Exchange from the foreign supplier on such deliveries of ordered goods. The Respondent does not engage himself in assembling and organizing of the imports. The Respondent is supposed to procure the orders and pass it on to the foreign supplier. The entire transaction is of procurement of orders and rendering of services towards the foreign supplier. Findings on services rendered by Respondent company: amounts to procurement of orders for the foreign supplier. (CESTAT Order at para 7 to 8 - pg. 221 to 223 of Paper-book Vol I) Activities of R....
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....vider in convertible foreign exchange". d) On 01/07/2012, the old provisions of ESR were superseded and following provisions came into force: i) Rule 6A providing for "Export of Services" was inserted in Service Tax Rules, 1994 (STR). ii) Place of Provision of Service Rules, 2012 (POP) came into force. e) Rule 6A continued with the requirement of recipient of service being located outside India and payment being received in convertible foreign exchange. Rule 3 of POP specifically provided that the place of provision of a service shall be the location of the service recipient. (Impugned Order at para 26 to 30 - pg. 33-38 of Paper-book Part I) Nature of Services: Verizon Communications India Pvt Ltd (VCIPL) entered into an agreement with MCI International Inc. ('Verizon US'), to render connectivity services to Verizon US. Verizon US is a Company located outside India and is inter alia engaged in telecommunication services to its customers across the globe. Verizon US does not have the capacity to provide such services in all geographical locations, hence, it takes services from other entities including VCIPL to provide data connectivity from/to India to its customers. The c....
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.... : Section 65(105)(zzg) of the Finance Act, 1994 M/s Samsung India Electronics Pvt. Ltd. was engaged in the activity of identifying new prospective customers and effectively communicating to them the features of their foreign clients' CDMA products. M/s Samsung India Electronics Pvt. Ltd. also provided customer care services to the customers of CDMA mobile phones in India on behalf of Samsung Electronics Company Ltd., Korea. For these two activities, M/s Samsung India Electronics Pvt. Ltd. was receiving a commission from their foreign client in foreign exchange. (Impugned Order at pg. 3 of Paper-book Vol I) Post 27.02.2010, for an Export of Service to be made out, only two conditions were to be satisfied i.e. provision of service must be to a recipient located outside India by a person inside India and that payment of such service is to be received by the service provider in convertible foreign currency. It was contended that for the relevant period, M/s Samsung India Electronics Pvt. Ltd. was satisfying these conditions. However, on the issue as above, no findings were returned by the Ld. CESTAT. Facts of the instant case were found to be similar to the case of Blue Star Ltd....
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....us period finding - activity not BAS Para 8 at Pg. 22 of Paper-book - Covered by Gap C.A. No. 9745/2018 Commissioner of Service Tax v. M/S J Mitra and Company Pvt. Ltd. Show Cause Notice dated 19.10.2011 (2006-07 to 2009-10) (Annexure A1 at pg. 58, 86 of Paper-book) Show Cause Notice dated 16.04.2012 (2010-11) (Annexure A2 at pg. 103, 106 of Paper-book) Rs. 7,47,96,885/- for BAS (Annexure A1 at pg. 86, 95 of Paper-book) Rs. 58,500/- for 'supply of tangible goods service' (Annexure A1 at pg. 96 of Paper-book) Rs. 6,52,794/- for commissioner received from foreign currency (Annexure A2 at pg. 106 of Paper-book) Category III Business Auxiliary Services (marketing and distributing): Section 65 (105)(zzb) of the Finance Act, 1994 (Impugned Order at pg. 2 of Paper-book) J. Mitra appointed by foreign entity for promotion and sales of the latter's endoscopy equipment in India. Issues framed (Impugned Order at para 4 - pg. 4 of Paper-book) Respondent company is exclusive agent of Olympus Singapore PTE Ltd. in India for promotion of sales and services of Olympus (Impugned Order at para 5 - pg. 4 of Paper-book) For export of service, CESTAT relied on Paul Merchant and G....
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.... support and market study reports to Agilent Singapore. Category II Management, Maintenance or repair service Agilent also undertakes tech support, installation facilities for Agilent Singapore's customers in India. CESTAT Delhi order dated 13.10.2015 - Para 3 at pg. 4 of Paper-book - Department did not contest the position that services constitute Export of Services Followed the decisions in the case of Paul Merchant and Microsoft Corporation CESTAT Delhi order dated 31.07.2017 - Para 3 at pg. 9 of Paper-book Followed the above Order dated 13.10.2015 for the previous period in the case of Agilent C.A. No. 1440/2019 Commissioner Central Excise Delhi-II v. M/s Research in Motion India Pvt. Ltd. 2005-06 to 2008-09 Rs. 6,80,39,260/- Category III Business Auxiliary Services: Section 65 (105)(zzb) of the Finance Act, 1994 - Sales promotion and Marketing services [Period- October 2005-March 2006 and June 2009-February 2010] Research in Motion India Pvt. Ltd. entered into a service agreement with Research in Motion, Singapore, for providing sales promotion and marketing service. [Impugned Order, Page 5, Paper Book-Vol-I] The assessee has provided marketing and support se....
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....xchange and in lieu of services provided. The activities undertaken would qualify as export of service (Page 9) With respect to the remainder demand of Rs. 31,80,857/-, an amount of Rs. 24,17,526/- stands paid. (Page 10) Remainder demand of Rs. 7,63,331/- set aside as the classification of the service is misplaced. (Page 12-13) C.A. No.9008- 9009/2019 Commissioner of Central Excise, and Service Tax, Bangalore LTU v. M/s IBM India Pvt Ltd. 01.12.2005 to 01.09.2007 Rs. 24,96,37,632 Category III Business Auxiliary Services: Section 65(105)(zzb) of the Finance Act, 1994 - Sales promotion and Marketing services The assessee entered into an agreement with M/s. IBM World Trade Corporation, USA terms of which the assessee was appointed as IBM USA's Business Partner in India for the purpose of marketing selected IBM products. The assessee received payment of commission in convertible foreign exchange. The assessee undertook various activities viz. promotion, marketing, sales, procurement of orders, and provide marketing support to identify and promote the products of IBM USA in India. [Impugned Order, Page 3] IBM India provides services to their foreign company situated ou....
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....o. 2634/2020 Commissioner of Service Tax VII Mumbai (Now known as Commissioner of Central Goods and Service Tax, Excise and Customs, Navi Mumbai) v. M/s Abbott Healthcare Pvt. Limited 2009-10 till 2012-13 Service tax demand of Rs. 28,92,48,439/- proposed in SCN dated 13.10.2014 for period from 2009-10 till 2012-13 (Impugned Order at pg. 7 of Appeal) OIO dropped the proceedings vide order dated 04.03.2015 initiated against the Respondent vide SCN dated 13.10.2014. (Impugned Order at pg. 2 of Appeal) Bifurcation of demand (Impugned Order at pg. 3 of Appeal) Category III Business Auxiliary Services: Section 65 (105)(zzb) of the Finance Act, 1994 - marketing and distributing (Impugned Order at pg. 42 of the appeal) The Assessee was trading in nutritional products in India as a distributor of imported goods from its fellow subsidiary company Abbott Logistics B.V. Netherland (hereinafter referred to as "ALOG") on principal-to-principal basis. The products are imported by the Assessee. In order to increase its market share and grow in the market, the Assessee entered into an arrangement with ALOG whereby it was mutually agreed that extraordinary or operating expenses incurred b....
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.... Consideration for the services is received by VIPL in convertible foreign exchange. The CESTAT Delhi held that "it is evident that the services of the Appellant (Verizon India) to Verizon US do not merit classification under the category of intermediary services Accordingly, we hold that the appellants have rendered services to Verizon US as principal service provider and not as intermediary" Accordingly, we hold that the appellants (Verizon India) are entitled to refund under rule 5 of the Cenvat Credit Rules, 2004 read with the concerned notification." (Impugned Order at para 31 - pg. 69-70 of Paper-book Part I) The adjudicating authority analysed 6 issues conditions for determination as to whether the services were "export of service" and decided the same in favour of the respondent. The service recipient (Verizon US) was located in USA, that is, outside India. The place of provision of service was outside India. Payment was received by the respondent in convertible foreign exchange. Under rule 3 of the POPS Rules, the Place of provision of service was the location of service recipient which was outside India. (Impugned Order at para 7 - pg. 31- 43 of Paper-book Part I) ....
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....ving commission from foreign based principal for promotion and sale of products in India. Submissions: 6. During the course of submissions, learned Additional Solicitor General (ASG) Sri Vikramjit Banerjee appearing for the appellant Revenue as well as learned senior counsel and counsel for the respondents-assessees drew our attention to the fact that in this batch of appeals, the services are all in either Category (ii) or Category (iii) services, vide Rule 3 of Rules. It is also not in dispute that the clients/customers of the assessees with whom the contract of service has been entered into and from whom payment in convertible foreign currency is received by the respondent assessees herein are all located outside India. Further, CESTAT has rendered findings of fact that the services have indeed been delivered outside India to the customers located outside India and hence, no substantive questions of law arise in these appeals. Of course, this submission is assailed by the appellant Revenue in these appeals. 6.1 Further, in respect of category No.(ii) services, CESTAT has observed that even the performance test has been satisfied. According to the respondent assessees, the act....
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....ed a licence under the first proviso to sub-section (1) of section 4 of the Indian Telegraph Act, 1885 (13 of 1885) and includes- (i) voice mail, data services, audio tax services, video tax services, radio paging; (ii) fixed telephone services including provision of access to arid use of the public switched telephone network for the transmission and switching of voice, data and video, inbound and outbound telephone service to arid from national and international destinations; (iii) cellular mobile telephone services including provision of access to and use of switched or non-switched networks for the transmission of voice, data arid video, inbound arid outbound roaming service to and from national and international destinations; (iv) carrier services including provision of wired or wireless facilities to originate, terminate or transit calls, charging for interconnection, settlement or termination of domestic or international calls, charging for jointly used facilities including pole attachments, charging for the exclusive use of circuits, a leased circuit or a dedicated link including a speech circuit, data circuit or a telegraph circuit; (v) provision of call managemen....
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....s "delivered outside India and used outside India" and "provided from India and used outside India" in Rule 3 of the Rules. According to the learned ASG, even if the contractual customer is located outside India, if the beneficiaries of the services are located within India, then they do not fall within the scope of the exemption. 7.1 In light of the aforesaid controversy, the learned ASG placed reliance on Paul Merchant vs. CCE, 2013 (29) STR 252 (Tri.-Del.) ("Paul Merchant"), paragraph 16 of the said order, which reads as under: "16. The entire argument of Revenue is based on the fact that the activities of PML are performed in India though words like "used in India" are used while arguing the point. We say so because there is no doubt that the use of the service is by the person paying for it that is Western Union and through them the person abroad who wants to remit the money and hence the use is outside India. But Revenue wants that the issue of export should be decided with reference to place of performance of service by PML, ignoring the fact that Business Auxiliary Service is not specified in Rule 3(1)(ii) where performance of service is the criterion but specified in Ru....
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....ategory (II) of the Rules. It was therefore their contention that the present appeals may simply be dismissed. 9. Another issue which was highlighted was with regard to the judgment of this Court in C.A. No. 10349 of 2018 (Commissioner of Central Excise and Service Tax vs. Canon India private Limited). It was submitted that where the assessee in these cases is a principal-to-principal distributor of the foreign company, i.e., where the assessee purchases goods from the foreign company and further sells them on its own account to independent customers in India, the finding of the CESTAT that the assessee is carrying out the sales and promotion on their own behalf is correct. In such a case, the assessee's activities are not covered under the definition of business auxiliary service within sub-section (19) of Section 65 of the Finance Act, 1994. Hence, it is not liable to pay any service tax on the receipts from the foreign company as a reimbursement of marketing expenses. The CESTAT has also rightly found that no service tax would be payable under the Rules and therefore had rightly set aside the demand. 10. In sum and substance, it was contended by learned senior counsel and ....
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....rtions of the said rule during different periods are set out below: 19.04.2006 to 28.02.2007 "(2) The provision of any taxable service shall be treated as export of service when the following conditions are satisfied, namely - (a) such service is delivered outside India and used outside India; and (b) payment for such service provided outside India is received by the service provider in convertible foreign exchange." 01.03.2007 to 31.05.2007 "(2) The provision of any taxable service specified in subrule (1) shall be treated as export of service when the following conditions are satisfied, namely - (a) such service is 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." 01.06.2007 to 26.02.2010 "(2) The provision of any taxable service specified in subrule (1) shall be treated as export of service when the following conditions are satisfied namely - (a) such service is provided from India and used outside India; and (b) payment for such service is received by the service provider in convertible foreign exchange." 27.02.2010 up to 30.06.2012 (....
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....ht and liability to receive the service and pay for the same. 11.6 With regard to the "post negative list" for the period from 07.07.2012 to 2014, learned senior counsel referred to the amendments made as under: a) That on 01.07.2012 the old provisions of Rules were superseded and following new provisions came into force: i. Rule 6A providing for "Export of Services" was inserted in Service Tax Rules, 1994 (for short "STR") ii. Place of Provision of Service Rules, 2012 came into force. b) That Rule 6A of STR continued with the earlier requirements under Rules relating to provider of service being located in taxable territory, recipient of service being located outside India and payment being received in convertible foreign-exchange. It also imposed following new conditions: i. Service is not specified in section 66D (negative list of services) ii. Place of provision of service is outside India, iii. Provider and recipient are not merely establishments of a distinct person in accordance with item (b) of Explanation 3 of Section 65B (44). The learned senior counsel contended that all these conditions were fully satisfied in respect of the services exported by the res....
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....finding was given by the authorities below. vi. The aforesaid submissions of the respondent relating to meaning and scope of the expression "intermediary" are also fully supported by the following circulars of the Government of India, Ministry of Finance which clearly show that there is no scope to treat the respondent's export service as intermediary service: I. Circular no.230/24/2024-GST dated 10.09.2024; II. Circular no.232/26/2024-GST dated 10.09.2024; III. Circular no.159/15/2021-GST dated 20.09.2021; and IV. Service Tax Education Guide dated 19.06.2012 issued by CBEC. 11.7 It was the contention of Sri Bagaria, learned senior counsel for the respondent assessee that since the services provided by the respondent to Verizon US were "export of services", both under Rule 3 of the Rules during "pre negative list" regime and Rule 6A of STR), read with Rule 3 of POP (during the post negative list period), consequential reliefs to the respondent were rightly granted by the High Court in the said case. 11.8 It was further submitted that SLP(C) No.25415 of 2018 has been rendered infructuous vide order dated 06.10.2021 passed by this Court. This was because the dispute was s....