CESTAT: No Service Tax is Payable on Commission Received in CFE

The Ahmedabad Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) in the case J M Huber India Pvt Ltd. Versus C.C.E. & S.T.-Surat-ii observed and has held that no service tax is being demanded when the commission received is in convertible foreign exchange.

The two-member bench comprising of Judicial Member, Ramesh Nair and the Technical Member, Raju in the case observed that the commission agent service provided to a foreign based entity for promoting or marketing their goods in India constitutes an export of services, wherein giving that the agent of Indian activity which includes providing promotion or marketing, technical support, commission, installation etc for the sale of good by foreign-based entities in India on the basis of commission.

A show cause notice has been issued by the appellant or assessee, wherein stating that the appellant has received a commission from various foreign companies for providing services in India, thus, the commission was being earned by them for the supply of material by foreign parties (including its principal abroad), i.e., for the service provided towards coordinating the customers in India with the overseas suppliers.

It has been submitted by the department that it has been provided by the appellant the services to the commission agent, which are being considered a “business auxiliary service” and is taxable with effect from July 9, 2004 and the services which are being rendered in India and hence they shall not be treated as exports even if they are rendered to any foreign national and he is paying for them in convertible foreign currency. Thus, the adjudicating authority while adjudicating the show cause notice, confirmed the demand for service tax and imposed penalties and demanded interest.

Further, it has been contended by the appellant that the service was provided in India but the service recipient is being located outside India, and the consideration has been received by the appellant in convertible foreign currency. Thus, as per the 2005 Export of Service Rules, the services of appellant qualifies as “export of service” and the same is not subject to service tax. Accordingly, it has been held by the tribunal that the service of the appellant is clearly qualified as an export of service; therefore, it is not taxable.