Marketing and support services to foreign companies in relation to Indian sales of foreign companies is Export of Services prior to October 1, 2014 and the Department cannot raise a ground related to facts of the case first time in Writ Petition
In instant case,Tandus Flooring India (P.) Ltd. (the Respondent), was to undertake the responsibility of providing marketing and sales support for distribution of floor coverings or carpet manufactured outside India by its holding company “Tandus Singapore” and sold to customers in India through their own dealers or directly (Impugned service).
After considering the provisions of Rule 6A of the Service Tax Rulesas well as Rule 3 of the POP Rules and also on the concession made by the Commissioner of Service Tax, Authority for Advance Ruling (“AAR”) ruled that the place of provision of Impugned service shall be the location of the service recipient in term of Rule 3 of the POP Rules and thus it would constitute export of service, not liable to Service tax.
The Commissioner filed Writ Petition challenging the said ruling of on ground that Impugned services were ‘intermediary services’ and would be taxed based on location of agent under Rule 2(f) and 9(c) of the POP Rules.
The Hon’ble High Court of Karnataka held that an Order which has been passed on a concession given by the Commissioner cannot be challenged by the Commissioner himself. Further, the argument of intermediary service when not raised before AAR cannot be raised first time in Writ petition,especially, when the same is a ground relatable to facts and not solely on a question of law.
(Bimal Jain, FCA, FCS, LLB, B.Com (Hons), Email: firstname.lastname@example.org)