22 August 2008
We are acting as commission agent for a foreign principal who does not have any office in India. We procure the order from India for the foreign principal. The confirmed order is forwarded to the foreign principal to enable it to ship the material to India. Billing is done by the foreign principal in favour of the Indian customer. For this transaction, we get commission in convertible foreign currency from the foreign principal. We have considered the above transaction under export of services. We are not paying any service tax on commission received. Are we correct?
22 August 2008
We are acting as commission agent for a foreign principal who does not have any office in India. We procure the order from India for the foreign principal. The confirmed order is forwarded to the foreign principal to enable it to ship the material to India. Billing is done by the foreign principal in favour of the Indian customer. For this transaction, we get commission in convertible foreign currency from the foreign principal. We have considered the above transaction under export of services. We are not paying any service tax on commission received. Are we correct?
25 August 2008
THe matter is highly litigated. As you have to prove that services are used Outside India. But a recent Judgement as per below is in favor of assessee.
AIT-2008-144-CESTAT
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH AT BANGALORE
Appeal No: ST/403/2007 (Arising out of Order-in-Appeal No:44/2007-ST dated 31.08.2007 passed by the Commissioner of Central Excise (Appeals-II), Bangalore)
M/s. Blue Star Ltd. Appellant
Versus
The Commissioner of Central Excise Bangalore Respondent
Appearance: Shri T. Gunasekaran, Advocate, for the appellant Shri T.C. Raja Das, Authorised Representative (SDR), for the Revenue
Coram: SHRI T.K. JAYARAMAN, Member(Technical)
Date of Hearing: 27.03.2008 Date of decision: 27.03.2008
AIT Head Note: appellants actually book orders for their Principal in USA/UK/other countries. The orders are booked in India and after the orders are booked, the parties concerned directly get in touch with the foreign suppliers. Once the foreign suppliers export the goods to India and receive their payments, a commission is paid to the appellant. the services rendered have been exported in terms of Rule 3(2) of the Export of Services Rules, 2005. Hence, the appellants are entitled for the refund of the Service Tax already paid. (Para 6)
F I N A L O R D E R
Per T.K. Jayaraman (Oral)
1. This appeal has been filed against the Order-in-Appeal No. 44/2007-ST dated 31.08.2007 passed by the Commissioner of Central Excise (Appeals-II), Bangalore.
2. Shri T. Gunasekaran, the learned Advocate, appeared on behalf of the appellants and Shri T.C. Raja Das, the learned SDR, for the Revenue.
3. Heard both sides.
4. The appellants filed a refund claim with the Department to the tune of Rs. 9,87,235/- on the ground that the services rendered by them amounts to Export of services in terms of Rule 3(2) of the Export of Services Rules, 2005 and, therefore, they are entitled for the refund of the Service Tax already paid by them. The learned Advocate stated that the appellants actually book orders for their Principal in USA/UK/other countries. The orders are booked in India and after the orders are booked, the parties concerned directly get in touch with the foreign suppliers. Once the foreign suppliers export the goods to India and receive their payments, a commission is paid to the appellant. It was urged that the service which is rendered by the appellant amounts to Business Auxiliary Service. However, the service is provided from India and used outside India. Further, the payment for such service has been received in convertible foreign exchange. The learned advocate invited my attention to the documents which are available in the Paper Book to show the details of the transactions. He has also furnished the Chartered Accountant’s Certificate.
5. On the other hand, the learned SDR took me to the Agreement entered into between the appellant and the principal and stated that in terms of the Agreement, the appellants are distributors of the various products of the foreign principals. He also directed my attention to the findings of the Commissioner (Appeals) in the impugned order. According to the learned Departmental Representative, one cannot say that the services have been exported. He stated that the service is provided in India. Therefore, Rule 3(2) of the Export of Services Rules, 2005 is not satisfied. Moreover, he made a point that the appellants did not furnish all the details while claiming the refund. Therefore, he was of the opinion that the matter has to be remanded.
6. On a very careful consideration of the matter, I find that the appellants have produced documentary evidence to show that they had rendered the services to their foreign principals by booking orders in India for their goods. I have also perused the details of the refund application. They all relate to the goods supplied by the foreign principals based on the orders booked by the appellant. Moreover, in the Agreement relied on by the Revenue, para 9 relates to the services rendered by the appellant. This para has not been referred to by the Commissioner (Appeals) in his order at all. On the basis of the records, I am convinced that the services rendered have been exported in terms of Rule 3(2) of the Export of Services Rules, 2005. Hence, the appellants are entitled for the refund of the Service Tax already paid. Therefore, I allow the appeal with consequential relief, if any.
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