Custom, Excise & Service Tax Tribunal
Microsoft Corporation (India) Private ... vs Cce, Delhi-Iii on 14 December, 2017
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SCO 147-148, SECTOR 17-C, CHANDIGARH 160 017
COURT No. I
APPEAL Nos. ST/57239-57240/2013
[Arising out of Order-in-Original No. 08-10/SA/CCE/ST/2013 dated 01.02.2013 passed by the Commissioner of Central Excise, Delhi-III, Gurgaon.]
Date of hearing: 09.01.2017
Date of decision: 14.12.2017
For approval and signature:
Honble Mr. Ashok Jindal, Member (Judicial)
Honble Mr. Devender Singh, Member (Technical)
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Microsoft Corporation (India) Private Limited.
:
Appellant(s) VS CCE, Delhi-III :
Respondent(s) ======================================== Appearance:
Sh. Tarun Gulati, Advocate for the Appellant(s) Sh. Atul Handa, AR for the Respondent(s) CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. Devender Singh, Member (Technical) Final Order No. 62137-62138 / 2017 Per : Devender Singh The appellants are registered with the Service Tax department for providing services under the category of Business Auxiliary Services, Manpower Recruitment Agency and Management, Maintenance and Repair Services. The appellants are a wholly owned subsidiary of Microsoft Corporation, USA and are incorporated in India. Three show cause notices were issued to the appellant on the following disputed issues:-
(i) Whether the Marketing Support Services (MSS) provided by the Appellant to Microsoft Singapore during the relevant period qualify as export of service under the Export of Service Rules, 2005 and therefore the consideration including reimbursements received by the Appellant from Microsoft Singapore is not taxable?
(ii) Whether the reimbursement received in relation to Product Support Services (PSS) rendered by the Appellant is not taxable for the period from 09.07.2004 to 31.03.2005?
(iii) Whether certain foreign currency expenditure incurred by the Appellant from April 2006 till March 2009 is not taxable under the Act?
The issue wise details of various show cause notices are as under:-
Sr. No. Issue Date of Show Cause Notice Period Amount (Rs.)
1. Marketing Support Services (MSS) Export status 23.10.2009 15.03.05 to 31.03.06 01.01.08 to 31.03.09 143,81,89,365/-
4.10.2010 01.04.09 to 31.03.10 63,11,63,071/-
2. Reimbursement in relation to MSS 23.10.2009 01.04.06 to 31.03.08 26,64,23,722/-
4.10.2010 01.04.08 to 31.03.09 10,02,24,599/-
Corrigendum Dt. 31.05.2013 01.04.08 to 31.03.09 6,45,86,338*
3. Reimbursement in relation to Product Support Services (PSS) 23.10.2009 09.07.04 to 31.03.05 11,27,480/-
4. Service tax on forex expenditure 23.10.2009 01.04.06 to 31.03.09 65,52,957/-
Total amount in dispute 2,50,82,67,532 *Additional demand raised by corrigendum.
2. The facts leading to the show cause notices are that the appellants have entered into a contract with their overseas group company Viz Microsoft Operations Pte. Ltd. Singapore. The said contract is in the form of market development agreement dt. 01.07.2005 in terms of the said agreement effective from 01.07.2005, the appellant undertakes marketing activities like maximizing the markets for Microsoft products including all local advertising, dissemination of information to potential customers, commenting on any developments in the territory affecting the software industry, investigating feasibility for new markets for Microsoft products etc. As per sub clause 3.2 of clause 3 of the said agreement, under the head Marketing of Microsoft Products- Subsidiarys Duties, it has been mentioned that Subsidiary will use its best efforts to further the interests of Microsoft Operations Pte. Ltd. and to maximize the markets for Microsoft products in the Territory. The assessee is accordingly issuing invoices in US$ to M/s Microsoft Operations Ltd. , Singapore describing the services as Marketing Support Services fee. Revenue felt that in terms of the agreement mentioned above the services of marketing of Microsoft Products rendered by the assessee are being performed and used in India for furtherance of business of Microsoft, Singapore and that that services provided by Microsoft India was in the nature of marketing and support services.
3. A show cause notice C No. I-26(494)St./Adt./Gp.I/Microsoft/607/07 dated 23.04.2008 was also issued to the assessee by the Commissioner, Service Tax, New Delhi wherein, demand pertaining to PSS under the services of management, maintenance or Repair was issued for the period 09.07.2004 to 31.12.2007 under the Business Auxiliary services. The case was adjudicated vide OIO No. 77/VKG/CST/2008 dated 23.09.2008 wherein the demand of service tax against PSS and MSS was confirmed.
4. Based on the above, further details were called for relating to value in respect of Reimbursement of Market Support Services for the year 2010-11, value of Market Support Service shown as export turnover for the year 2010-11 as well as Foreign Currency Expenditure for the year 2010-11 vide their letter dated 01.09.2011.
5. Revenue also felt that in terms of Section 67 of the Finance Act, 1994 read with Determination of Value Rules, 2006 the reimbursement received against taxable services should also form a part of the taxable value. However, by not paying the service tax on the reimbursement received by the assessee, it appeared that the appellants had contravened the provisions of Finance Act, 1994 and Determination of Value Rules, 2006.
6. The assessee vide its dated 07.01.2009 supplied details for the period 2003-04 & 2004-05 for reimbursements received from overseas in relation to PSS. In reply, the assessee had shown an amount of Rs. 1,54,80,268.00 as non taxable against reimbursement under PSS. Vide letter dated 06.12.2008, the assessee informed that they have discharged their service tax liability on this account for the period 2005-06 and 2006-07 and they continued to pay thereafter. The income under PSS which pertain to maintenance of Repair Services. These services were exempted from payment of service tax vide Notification No. 21/2003-ST dated 20.06.2003, however, the said notification was withdrawn vide Notification No. 7/2004-ST dated 09.07.04. Revenue felt that the assessee was liable to pay service tax during the period 09.07.2004 to 31.03.2005. The proportionate amount of taxable value worked out Rs. 1,16,10,201.00. Service tax on this amount is derived as per following table:-
Service Tax on reimbursement under PSS Period Amount Received Service Tax rate Service Tax 09.07.2004 to 10.09.2004 25,80,045 8.00% 2,06,404 11.09.2004 to 31.03.2005 90,30,156 10.20% 9,21,076 Thus the total service tax liability on this account was worked out to be Rs. 11,27,480.00 (including education cess)
7. The party vide their letter dated: 18.11.2008, 07.01.2009 and 01.09.2011 supplied figures in respect of the reimbursement in respect of Market Support Services for years 2006-07 to 2010-11. It appeared that the party hac not discharged its service tax liability on amount received by it. Service tax on this amount was derived by the Revenue as per the following table:
Service tax on reimbursement under MSS:-
Period Amount Received Service Tax Rate Service tax 2006-07 81,88,28,426.00 12.24% 10,02,24,599.00 2007-08 1,34,46,53,101.00 12.36% 16,61,99,123.00 2008-09 133,34,21,822.00 12.36% 10,02,24,599.00 2009-10 169,60,33,177.00 10.30% 16,61,99,123.00 2010-11 60,66,84,679.00 10.30% 6,24,88,552.00 Total:-
579,96,21,205.00 59,53,35,996.00 Thus the total service tax liability on this account was worked out to be Rs. 59,53,35,996/- (including education cess & secondary and higher education cess).
7. For the figures pertaining to marketing support activities for the period 2004-05 to 2005-06 and January 2008 to March 2009, 2009-10 and 2010-11, the assessee provided the details of such services. As per the details submitted by the party, the total amount, received by the assessee for the aforesaid period towards Marketing Support Services shown as export turnover was Rs. 579,96,21,205/-.
8. The three show cause notices were adjudicated vide its order dated 01.02.2013, the adjudicating authority confirmed the demand of service tax amounting to;
(i) Rs. 206,93,52,436.00 along with interest in respect of Marketing Support service shown on export turnover,
(ii) demand of Rs. 36,66,48,321.00 along with interest in respect of reimbursement of Marketing Support Service.
(iii) demand of Rs. 11,27,480.00 along with interest in respect of Product Support Service (PSS).
(iv) demand of Rs. 65,52,957.00 along with interest in respect of Foreign Currency Expenditure.
Equivalent penalties were also imposed under section 78 of the Finance Act, 1994 besides penalty under section 77 of the Act. Aggrieved from the same, the appellants have filed this appeal.
9. Ld. Advocate for the appellants submitted that the MSS provided by the appellants to the Microsoft Singapore qualifies as export of service as has been held by the Larger Bench in the appellants own case in Microsoft Corporation India Pvt. Ltd. Vs. CST 2014 (36) STR 766. He stated that the period covered in the earlier show cause notice dt. 24.04.2008, which was the subject matter of the above mentioned Larger Bench judgment regarding MSS was 19.04.2006 to 31.12.2007. He mentioned that the Larger Bench has held that the Customer for MSS provided by the appellants is Microsoft Singapore and the benefit of the service has accrued outside India to Microsoft Singapore. In view of the same he argued that the MSS, which is Business Auxiliary Service rendered to Microsoft Singapore, would amount export of services. He contended that the issue stands squarely covered in their favour for the relevant period i.e. 15.03.2005 to 31.03.2006, 01.01.2008 to 31.03.2009 and 01.04.2009 to 31.03.2010 (in respect of MSS), and 01.04.2006 to 31.03.2008 and 01.04.2008 to 31.03.2009 (in respect of reimbursements in relation to MSS). It was further contended that the reimbursement in relation to MSS also formed part of export turnover since such reimbursements form the cost base for cost plus markup consideration received by the appellants in respect of MSS under the agreement. The appellants also relied on the following decisions of the Tribunal:-
(a) Vodafone Essar Cellular Ltd. Vs. CCE Pune-III 2013 (31) STR 286 (Tri. Mum.)
(b) CST Mumbai Vs. Vodafone India Ltd. 2015 (37) STR 286 (Tri. Mum.).
(c) Gap International Sourcing (India) Pvt. Ltd. Vs. CST Delhi 2015 (370 STR 757 (Tri. Del).
(d) Alpine Modular Interior Pvt. Ltd. Vs. CST (Adj.) Delhi 2014 (36) STR 454 (Tri. Del.)
(e) GECAS Services India Pvt. Ltd. Vs. CST 2014 (36) STR 556 (Tri. Del.)
(f) Samsung India Electronics Pvt. Ltd. Vs. CCE, Noida 2016 (42) STR 831.
10. Ld. Advocate further contended that Product Support Services (PSS) has been held to be not taxable prior to 07.10.2005 by this Tribunal. It was further submitted that the Larger Bench judgment covered the consideration received by the appellant in respect of PSS for the period prior to 06.10.2005, the show cause notice in the instant case has been issued for reimbursement in relation to PSS which were not covered in the earlier show cause notice for the same period. The contention was that in their own case in Microsoft Corporation India Pvt. Ltd. Vs. CST (supra) this Tribunal in Para 10 and 16 has set aside the demand for the period prior to 07.10.2005, on maintenance or repair services of software. He also relied on the following case laws:-
a) Phoenix IT Solutions Vs. CCE 2011 (22) STR 400 (Tri. Bang.)
b) Sap India Pvt. Ltd. Vs. CCE 2011 (21) STR 303 (Tri. Bang.).
c) VGL Softech Ltd. Vs. CCE 2013 (31) STR 123 (Tri. Del.) He prayed that their appeals be allowed on the above mentioned issues in view of the Larger Bench decision of the Tribunal. His further contention was that foreign currency expenditure was not liable to Service Tax. The Department has not also mentioned the relevant taxable category under Section 65 (105) of the Act for demanding the Service Tax. The expenses in foreign currency are towards in the purchase of goods outside India, employee related expenses like travelling etc. incurred outside India, expenses for non-taxable services and expenses for services received outside India. He also pointed out that the demand on the same kind of expenses for the period 2009-2010 and 2010-2011 has been dropped by the Commissioner accepting the explanation provided by the appellants. The appellant continued in the same business throughout disputed period and most of the expenses are of recurring nature. Hence, it was contended that these expenses for April, 2006 to March, 2009 should also covered by the explanation given by the appellant for the subsequent period, which has been accepted by the Department. He further submitted that neither the show cause notice nor the impugned order proposes any specific classification or sets out a charge against the Appellant to demand and confirm Service Tax on the foreign currency expenditure. He relied on the following case laws:-
a) CCE, Nagpur Vs. Ballarpur Industries Ltd. 2007 (215) ELT 489 (SC).
b) CCE, Bangalore Vs. Brindavan Beverages Pvt. Ltd. 2007 (213) ELT 487) (SC).
It was also submitted that no specific taxable category has been specified in the show cause notice. Hence no Service Tax can be levied on it. The Department has therefore failed to discharge its burden as to the taxable category in which activity of the assessee falls. He relied on the following case laws:-
a) Dewsoft Overseas Pvt. Ltd. Vs. CST Delhi 2008 (12) STR 730 (Tri. Del.)
b) S.N. Uppar & Co. Vs. CCe, Belgaum 2008 (11) STR 34 (Tri. Bang.).
He also argued that extended period could not be invoked as the Revenue had already initiated the proceedings on the same issue in the show cause notice dt. 24.04.2008. He relied on the case of Nizam Sugar Factor Vs. CCE, AP 2006 (197) ELT 468 (SC).
11. Ld. AR reiterated the findings in the order of the adjudicating authority. He relied on the following circular issued by CBEC:-
a) Circular No. 81/2/2005- ST dt. 07.10.2005.
b) Circular F. No. 256/1/2006-Cx4 dt. 07.03.2006.
He further submitted that the appeal filed by the Department against the order of the Tribunal in the case Microsoft Corporation India Pvt. Ltd. Vs. CST (supra) has been admitted by the Honble Supreme Court.
12. Heard the parties and perused the record.
13. We find that the first issue in these appeals is whether the income earned out on account of service claimed as export under the category of Business Auxiliary Service is chargeable to service tax during the period 01.04.2009 to 31.03.2011. The Ld. Commissioner has dealt with these issues in paragraph 52 of his order and has confirmed the demand of Rs. 206,93,52,436.00 for the period upto 26.02.2010. He has dropped the demand of Rs. 72,14,0827.00/- for the period after 26.02.2010. The main rationale behind the order of the Ld. Commissioner (A) is given in following paragraphs, which are extracted below:
52.15 The services in this case were to be of no use if they were not put to use in the place where they originated. The word use in its widest connotations also means non-use. The use of a service does not mean that the service provided must be liked, or appreciated or acted upon. There can be a variety of reasons that may compel the beneficiary not to act upon the service received exactly in the manner service provided proposes to. But non-action or taking an action other than what naturally seems to flow from th eservice provided does not take away the fact that service has been used. I consider relevant to mention that a distinction must be drawn amongst the words users, beneficiary and buyer of service. While many a times they are same, they may not be so in all the cases. The benefits in this case would definitely flow to Microsoft Singapore but that does not mean that services have been used outside India.
52.16 The notice has also given example of Call Centres/ B.P.Os where, according to the Noticee, the services are being considered as export on the ground that these are being provided to the recipients located abroad. The Noticee has, however, failed to cite any decided case law or adduce any other evidence, which could form the basis of coming to the conclusion that either the services of Call Centres/BPOs are comparable to the services rendered by them or whether, if such a practice at all exists at some lever, it has attained legal finality or precedential value for the determination of this case. Likewise, comparison made under Foreign Trade Development & Regulation Act, 1992 in respect of export of goods are of no avail as the export of goods is an entirely different matter governed by the law specified elsewhere.
52.17 The Noticee has relied on a number of judgments of which I must make a mention of the judgment in the case of Honble Tribunal in M/s Blue Star Ltd. Vs. CCE, Banglore, 2008-TIOL-716-CESTAT-Bang. Varuna Sulphonators Vs. UOI 1993 (68) ELT 42 (ALLahabad) and Paul Merchants ltd. & Others Vs. CCE, Chandigarh, 2012 (12) TMI 424-CESTAT, Delhi(LB). These judgments do not help the Noticee for the following reasons:
52.18 The services provided were merely booking the orders and sourcing of contracts after which the parties were directly in touch with the foreign principals and in the case of Paul Merchants ltd. the appellant is only handing over money to the designated person on behalf of its overseas counterpart. In the case under consideration a host of services have been rendered in India, which requires tremendous physical efforts.
52.19 Further, the above judgments and other judgments cited are also of no avail as the facts in this case are clearly at variance from the facts in the cited cases. Therefore, I hold that the services being provided by the Noticee being physically provided in India do not satisfy the conditions of the Export of Service Rules, 2005, as amended and M/s MCIPL is liable to pay service tax on the consideration received for rendering such services.
13. We find that an identical issue has been examined by this Tribunal in the appellants own case decided vide Final Order No. ST/A/53737/2014-CU(DB) dated 23.09.2014 92014-TIOL-1964-CESTAT-DEL), wherein in a difference opinion, the majority view was as under:
48. Without going into the detailed facts involved and the detailed submissions made by both the sides, I find that an identical dispute was the subject matter of another decision of the Bench Constituting the same Members, in the case of M/s Paul Merchants ltd. Vs. CCE, Chandigarh [2013 (29) STR 257 (Tri.)]. The said difference of opinion referred to third member stand resolved in favour of the assessee. It stand held by third Member that the services provided by a sub-agent in India to a service recipient located outside are export of service and hence not liable to be taxed.
49. Inasmuch as the same issue is involved in the present matter also, by adopting the said majority decision in the case of Paul Merchants Ltd. laying down that the services provided by the agents and some agencies being delivery of money to the intended beneficiary of the customer of the western units abroad, which may be located in India and the services provided being business auxiliary services is also to be the western unit who is recipient of services and consumers of services, it has to be held that services were being exported in terms of Export of Services Rules, 2005 and not liable to service tax.
50. In a recent decision the Tribunal in the case of Larsen & Toubro [Misc. order No. 59225-59226/13 dated 09.09.2013] held that a majority decision is Larger Bench decision having the same binding criteria as that of Larger Bench. If that be so, the majority decision in the case of Paul Merchant is required to be followed.
51. Even otherwise also, I find that the disputed service is the service being provided by the appellant to his principal located in Singapore. The marketing operations done by the appellant in India cannot be said to be at the behest of any Indian customer. The service being provided may or may not result in any sales of the product in Indian soil. The transactions and activities between the appellant and Singapore principal company are the disputed activities. As such, the services are being provided by the appellant to Singapore Recipient company and to be used by them at Singapore, may be for the purpose of the sale of their product in India, have to be held as export of services.
52. Apart from the above, we note that there was identical issue was before the Bench of the Tribunal in the case of Gap International Sourcing (India) Pvt. Limited - 2014-TIOL-465-CESTAT-DEL. Vide its detailed order and after considering the various decisions of the higher Court as also various circulars issued by the Board, it stand held that services of identifying the Indian customers, for procurement of various goods on behest of foreign entity is the service provided by a foreign entity and such service provided by a person in India is consumed and used by a person abroad. It has to be treated as export of services. I also take note of the Tribunals decision in the case of Vodafone Essar Cellular Ltd. vs. CCE Pune - 2013-TIOL-566-CESTAT-MUM, wherein it stand held that when the services is rendered to third party at the behest of the assessees customers, the service recipient is assessees customer and not the third party i.e. his customers customer. As such, the services being provided at the behest of the foreign telecommunication services provided to a person, roaming India were held to be constituting export services under the Export of Services Rules, 2005. The said decision stand subsequently followed by the Tribunal in the case of CESTAT, Mumbai vs. Bayer Material Science Pvt. Ltd. vs. CST Mumbai [2014 TIOL- 1064 CESTAT- Mum] (It should be 2014-TIOL-1084-CESTAT-MUM : Editor) Business Auxiliary services provided by the assessee to their members located outside India by marketing their product in India was held to be export of services inasmuch as the service was held to be provided to the foreign located person who was also paying to the assessee on such services in convertible foreign exchange.
53. Learned DR appearing for the appellant has not been able to brought to my notice any other decision of any other Court which is contrary to the law declared in the above referred decision. Accordingly, I agree with the learned Member (Technical) that the services provided by the appellant are covered by the Export of Service Rules 2005 and are not liable to service tax.
54. In view of the above, the difference of opinion on various points is resolved as under:
(i) That the business auxiliary services of promotion of market in India for foreign principal made in terms of agreement dated 1.7.2005 amount to Export of Services and the Honble Supreme Court decision in the case of State of Kerala and Others vs. The Cochin Coal Company Ltd. [1961 (12) STC 1 (SC) as also Burmah Shell Oil Storage and Distributing Co. of India Ltd. vs. Commercial Tax Officers [1960 (11) STC 764] = 2002-TIOL-966-Sc-CT-CB explaining the meaning of export is not relevant inasmuch as the same deals with the export of goods and not export of services;
(ii) That the Business Auxiliary services provided by the assessee to their Singapore parent company was delivered outside India as such was used there and is covered by the provisions of Export of Service Rules and are not liable to Service Tax.
xxx xxx xxx
14. Accordingly, by following the Larger Bench decision in the appellants own case cited above (Final Order No. ST/A/53737/2014-Cus (DB), which has been decided in their favour holding that such services provided to M/s Microsoft Operations P. Ltd. Singapore, amount to export of services and hence are not liable to service tax. We hold that the services being provided by appellants satisfy the conditions of Export of Service Rules, 2005, hence are not liable to service tax.
15. The second issue relates to the reimbursement received on account of services claimed as exported under the category of Business Auxiliary Services. The demand confirmed on this account is for the period 2006-2007 to 2008-2009 amounting to Rs. 36,64,48,321.00/- as the value of such reimbursements was not included in value of MSS. However, for the period 2009-2010 to 2010-2011, demand of Rs. 22,86,87,675.00/- has been dropped by the Ld. Commissioner (A) as the value of MSS was inclusive of such reimbursements for that period. Admittedly, these reimbursements are in relation to MSS and form part of the cost/ consideration received by Microsoft India for marketing activities of Microsoft Products in India i.e. MSS and not purely reimbursement of out of pocket expenses.
16. Since, in the preceding discussion it has been held that the Business Auxiliary Services in relation to MSS is covered as export of service under Export of Service Rules, 2005, the reimbursement in relation to MSS would also therefore, be not liable to service tax.
17. The third issue on which demand has been confirmed is in relation to the income on account of maintenance and repair of software chargeable to service tax during the period 09.07.2004 to 07.10.2005. The Ld. Commissioner in his order has gone by the Board Circular No. 256/1/2006-CX-04 dated 07.03.2006, wherein the effective date of taxability for maintenance and repair service of software under Section 65 (105) (zzg) read with section 65 (64) of the Finance Act, 1994 has been fixed to be 09.07.2004. The appellants have argued that product export services have been held to be non taxable in their own case by the Division Bench of this Tribunal because there was no difference of opinion on this issue between the two members and accordingly the issue is covered by the Final Order no. 53737/2014 dated 23.09.2014. We find it so and accordingly set aside the demand on this issue.
18. on the fourth issue of expenditure on foreign currency liable to service tax under the reverse charge mechanism, the Ld. Commissioner (A) has confirmed the demand of Rs. 65,52,957.00/- for the period 17.04.2006 to 31.02.2009. The demand before this period has been dropped on the basis of the judgment of Bombay High Court in Indian National Shipowners Association Vs. UOI reported in 2009 (13) STR 235 (Bom.) and the demand for the subsequent period i.e. 2009-2010 and 2010-2011 has also been dropped because the appellants provided the required particulars of taxable confirmed expenditure on which service tax has been paid and non taxable portion of foreign currency expenditure. The Ld. Commissioner (A) has observed that for the impugned period, the noticee has not given any cogent explanation/details of the foreign currency expenditure as they gave for the period 2009-2010 & 2010-2011. In their submissions before this Tribunal, the ld. Advocate has submitted that the respondent has not mentioned the relevant taxable category under Section 65(105) of the Act for demanding the service tax. Besides, the appellants also claim that they have time and again clarified to the audit/adjudicating authority about expenditure in foreign currency. In this regard, he drew attention to their letters dated 18.11.2008 and their letter dated 16.10.2009 & 7.10.2009 by which the relevant information was provided by the appellant to the department. However, the fact remains that the Ld. Commissioner has given no findings at all on the above demand in the impugned order and it would be in the interest of justice that the supporting evidence for the impugned period are submitted before the adjudicating authority, who will carefully examine the evidence in respect of this particular demand and given his findings and conclusion on the evidence and the submissions of the appellant made before him.
19. The appellants have argued on the limitation also claiming that the extended period of limitation for demanding service tax cannot be invoked. It has been pointed out that both the members of the bench who were hearing their own case relied upon by them in respect of Issue No. 1 & 2 had concurred on this and that there was no difference of opinion of this issue. In this regard, they invited attention to para 11.9 & para 16 of the majority decision in Microsoft Corporation P. Ltd. (Supra).
20. Considering that the issues No. 1 and 2 in the present case have already been decided on merit in favour of the appellants, we are not looking into the limitation aspect.
21. In view of the above, demands in respect of the issue no. 1, 2 & 3 are set aside.
22. The matter pertaining to service tax on foreign expenditure for 17.04.2006 to 31.03.2009 is remanded back to the Ld. Adjudicating authority to pass a fresh adjudication order after giving fair opportunity to appellants to defend their case. The issue of limitation pertaining to this demand is kept open.
23. The appeals are disposed off in the above terms.
(Order pronounced in the Court on 14.12.2017) Ashok Jindal Devender Singh Member (Judicial) Member (Technical) KL 17 Appeal Nos. ST/57239-57240/2013 CHD