TaxTMI 
TaxTMI 
2025 (12) TMI 763
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....ies by confirming demands against which the appellant had filed two appeals bearing No. ST/10321/2013 and ST/12027/2016 which were decided by this Tribunal vide Final Order No. A/10934/2023 dated 20.04.2023 and 10704/2024 dated 28.03.2024 respectively by way of remand to the Adjudicating Authority. 1.1 In show cause notices at serial No. 4 and 5, service tax (including education cess and secondary and higher education cess) has been demanded under Section 73(1)/ 73(1A) of the Finance Act, 1994 along with interest under section 75 with proposal to impose penalty under Section 76 of the said Act. The Show Cause Notice at serial No. 4 was adjudicated by the Commissioner, Central Excise, Customs & Service Tax, Bharuch vide impugned order dated 31.01.2017 wherein, he confirmed the entire service tax demand (i.e. demand of Rs.98,424/- on Commission paid by Appellant to foreign companies and demand of Rs.2,22,46,528/- on commission received by the appellant from foreign companies) alongwith interest and imposed a penalty @10% of the service tax amount under section 76 of the Finance Act, 1994. 1.2 The SCN at Serial No. 5 was adjudicated by the Commissioner vide order dated 16.04.201....
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....cts f) 2010 (17) STR 185 (Tri. Bang.) Worldspace India Pvt. Ltd. g) 2010 (17) STR 303 (Tri. Bang.) Muthoot Fincorp Ltd. * Circular No.11/05/2009-ST dated 24.2.2009 clarifies that commission received by them from foreign companies during the period from April 14 to September 2014 as Indian Commission Agent for sale promotion of goods in India is not leviable to service tax. * For the period w.e.f. 01.10.2014, they have already paid the service tax of Rs. 1,51,90,918/- on the commission so received as the said activity became taxable in terms of amended definition of intermediary service as per Rule 2(f) read with Rule 9 of the POPS Rules, 2012. Such services w.e.f. 01.10.2014 are treated as intermediary services. For taxability of such services, location of the service provider should be in Taxable Territory. They being located in India, are liable to service tax on such commission amount. * They received commission of Rs. 5,71,37,998/- during the period April 2014 to September 2014 and Rs. 11,73,07,770/- for the period from October 2014 to September 2015. They have already paid service tax of Rs. 1,51,90,918/- on commission received duri....
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....um) * Yamazaki Mazak India Pvt. Ltd. 2018 (12) GSTL 66 (Tri. Mum) * Pulera Chemicals India Pvt. Ltd. 2015 (39) STR 700 (Tri. Mum) * Wartsila India Ltd. 2019 (24) GSTL 547 (Born.) * Citi Bank N.A. 2018 (18) GSTL 580 (Born.) * Life Care Medical Systems 2018 (18) GSTL 587 (Born.) * ATE Enterprises Pvt. Ltd. 2018 (8) GSTL 123 (Born.) 4. Learned AR, on the other hand, reiterated findings of the lower authorities. Regarding service tax demand of Rs. 98,424/- and Rs. 68,385/- on the amount of commission paid to foreign commission agents, he argued that the appellant was required to pay service tax on reverse charge mechanism for services received by them from the foreign based commission Agents. The appellant have mis-placed reliance on Rule 9 of the POPS Rules, 2012 as Foreign Commission Agents cannot be treated as intermediary as they are providing the main service of sales promotion. "Intermediary" has been defined under Rule 2(f) of POPS, Rules 2012 to mean: (f) "intermediary" means a broker, an agent or any other person, by whatever name called, who arranges or facilitates a provision of a service (hereinafter called t....
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.... export of goods. However, the use of input service received is meant for export of goods only. Except the lapse, of not mentioning invoice number in the shipping bill, there is no other violation of notification. Merely for the small procedural lapse exemption cannot be denied as held in various decisions cited by the appellant. Therefore, we are of the view that the appellant is entitled for the exemption Notification No. 18/2009-ST dated 07.07.2009." Since the issue is no more res-integra, we therefore set aside the service tax demand of Rs.1,66,809/- for the period from April 2014 to June 2017. Since service tax itself is not payable by the appellant, we also set aside the demand of interest and penalty imposed under Section 76 of Finance Act, 1994 5.2 Regarding the second issue, there are two periods involved i.e. one from April 2014 to September 2014 when "intermediary" as per Rule 2(f) of POPS Rules, 2012 was defined as: f) "intermediary" means a broker, an agent or any other person, by whatever name called, who arranges or facilitates a provision of a service (hereinafter called the 'main' service) between two or more persons, but does not include a p....
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....e come to notice that certain activities, illustrations of which are given below, are denied the benefit of export of services and the refund of service tax under rule 5 of the Cenvat Credit Rules, 2004 [Notification No. 5/2006-C.E. (N.T.), dated 14-3-2006] on the ground that these activities do not satisfy the condition 'used outside India', - (i) ...... (ii) ..... (iii) Indian agents who undertake marketing in India of goods of a foreign seller. In this case, the agent undertakes all activities within India and receives commission for his services from foreign seller in convertible foreign exchange; (iv) ...... The departmental officers seem to have taken a view in such cases that since the activities pertaining to provision of service are undertaken in India, it cannot be said that the use of the service has been outside India. 2. The matter has been examined. Sub-rule (1) of rule 3 of the Export of Services Rule, 2005 categorizes the services into three categories : (i) Category I [Rule 3(1)(i)] : For services (such as Architect service, General Insurance service, Construction service, Site Preparation service) that....