Custom, Excise & Service Tax Tribunal
Trinity Touch Pvt Ltd vs Service Tax - Delhi on 23 August, 2018
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL,
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI-110066
BENCH-DB
COURT -IV
Service Tax Appeal No.ST/52533/2015-CU[DB]
[Arising out of Order-in- Appeal No.28/ST/DLH/2014 dated
28.04.2015 passed by the Commissioner (Appeals-I), Service
Tax, Delhi]
M/s.Trinity Touch Private Ltd. ...Appellant
Vs.
Commissioner, Service Tax ... Respondent
Present for the Appellant : Mr.R.Krishnan, Advocate Present for the Respondent: Mr.Vivek Pandey, D.R. Coram: HON'BLE MR. C.L. MAHAR, MEMBER (TECHNICAL) HON'BLE MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Date of Hearing/Decision: 23.08.2018 FINAL ORDER NO. 52869/2018 PER: RACHNA GUPTA Present is an appeal against the Order of Assistant Commissioner bearing No.1771 dated28th April, 2015.
2. The facts relevant for the purpose are that the appellant is registered for providing taxable services under the category of management consultancy services and renting of immovable property services. The Department during an audit conducted 2 ST/52533/2015-CU[DB] in May, 2010 observed that the assessee has received some income as commission from M/s. Al bright International Ltd. The said commission is alleged as taxable under the category of business auxiliary services falling under Section 65 (105) (zzd) of Finance Act, 1994. The said demand was raised by the Show cause notice bearing No. 1339 dated 2 nd April 2012. The Adjudicating Authority vide order No.28 dated 28 th February, 2014 had confirmed the said demand. The appellant filed an appeal before the Commissioner (Appeals) who vide the order under challenge has upheld the findings of the original adjudicating authority. Being aggrieved is the present appeal.
3. We have heard Mr. R. Krishnan, ld. Counsel for the appellant and Mr. Vivek Pandey, ld. DR for the Revenue.
4. It is submitted on behalf of the appellant that appellant is a commission agent based in India who is procuring orders for the manufacturers who are based outside of India. The issue has already been settled. For holding such services as that of export services being not taxable, he has relied upon the authorities below:-
1. Barco Electronics Systems Pvt. Ltd. vs. C.C., C. Ex.
& S.T., Noida - 2016 (45) S.T.R. 532 (Tri. -All.).
2. Sumitomo Corporation India Pvt. Ltd. vs. Commissioner of S.T., Delhi.
3
ST/52533/2015-CU[DB]
3. Slue Star Ltd. vs. Commissioner of Service Tax, Mumbai - 2016 (46) S.T.R. 59 (Tri.-Mumbai)
4. Commr. of Central Excise vs. Computer Sciences Corpn. India P. Ltd. - 2015 (37) S.T.R. 62 (All.).
5. Accent Overseas P. Ltd. vs. Commissioner of Service Tax, New Delhi - 2018 (14) G.S.T.L. 367 (Tri. - Del.)
5. While rebutting these arguments, ld. DR has impressed upon that the orders of the adjudicating authority below have appreciated that the appellant has not cooperated the Department. Resultantly, there was no evidence available with the Department to assert the contention of the appellant and to hold the impugned services as that of export services. The demand has been levied under Best Judgement Principle. While justifying order under challenge, the ld. DR has prayed for appeal to be rejected.
6. After hearing both the parties and perusal of case laws as placed on record by the ld. Counsel for the appellant we are of the opinion that the issue involved herein is no more res integra. The catena of judgements has held that the services provided from India and used outside India have to be treated as export of services. This issue has been clarified by the Department itself also vide their CBEC Circular No.111/05/2009-ST dated 24th February, 2009. Though the ld. DR has impressed upon the lack of evidence specifically the contract of the appellant with M/s.Albright International, the 4 ST/52533/2015-CU[DB] service recipient but from the show cause notice and the orders of the adjudicating authorities below this is an apparent acknowledged fact that the service provider is based in India and the service recipient is based out of India. To our opinion the absence of the agreement which is though annexed with the present appeal memo is not making any difference as far as the issue for treating such a transaction to be that of export service is concerned. The latest adjudication in Barco Electronics Systems Pvt. Ltd. vs. CCE & ST, Noida - 2016 (45) STR 532 (Tri.-All.) is relied upon. Para 12 thereof reads as follows:-
"12.As per the law explained by the C.B.E. & C., it is explicit the services provided by the appellant is to their foreign principal who have paid for such services in convertible foreign exchange. Accordingly, we hold that appellant has satisfied both the conditions under the Rule 3 of Export of Services Rules of 2005. Accordingly, we hold that the appellant have exported the services in question and they are not liable to pay service tax under the Finance Act, 1994. Accordingly, the impugned order is set aside. The appellant will be entitled to the consequential benefits in accordance with law."
7. In view of the above discussion, we opine to follow the referred decisions. Resultantly, we hold that adjudicating authority below has failed to appreciate the facts of this case properly and thus has failed to apply the Circular No.111 of 5 ST/52533/2015-CU[DB] 24.02.2009. We therefore, set aside the order. As a result the appeal stands allowed.
[Dictated and Pronounced in the open Court] (C.L. MAHAR) (RACHNA GUPTA) MEMBER (TECHNICAL) MEMBER (JUDICIAL) Anita