IN THE HIGH COURT OF KARNATAKA AT BENGALURU PRESENT THE HON BLE MR.JUSTICE VINEET SARAN AND THE HON BLE MRS.JUSTICE S SUJATHA

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1 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8 TH DAY OF APRIL 2015 PRESENT THE HON BLE MR.JUSTICE VINEET SARAN AND THE HON BLE MRS.JUSTICE S SUJATHA WRIT PETITION NO OF 2013 (CESTAT) BETWEEN THE COMMISSIONER OF SERVICE TAX TTMC BUILDING, BMTC BUS STAND, DOMLUR, BANGALORE (BY SRI JEEVAN J NEERALGI, ADV.)... PETITIONER AND M/S TANDUS FLOORING INDIA PVT. LTD. NO.967, II FLOOR, 12TH MAIN ROAD, HAL II STAGE, INDIRANAGAR, BANGALORE REPRESENTED BY ITS MANAGING DIRECTOR. (BY SRI PRASAD PARANJAPE, FOR SRI P DINESH, ADVS.)... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED

2 2 ORDER DT PASSED BY THE AUTHORITY FOR ADVANCE RULINGS (CENTRAL EXCISE, CUSTOMS & SERVICE TAX) NEW DELHI IN RULING NO.AAR/ST/03/2013 AS PER ANNX-B AND ETC. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, VINEET SARAN J., PASSED THE FOLLOWING: ORDER The brief facts of this case are that : The respondent M/s.Tandus Flooring India Pvt. Ltd., is a wholly owned Indian subsidiary of M/s.Tandus Flooring Asia Pte Ltd., Singapore, which is a leading manufacturer of floor covering products. The respondent-company was set up with the objective of strengthening and enhancing sales of its products to the Indian customers. The respondent- Company is to provide marketing and sales support for the distribution of floor covering or carpet manufactured outside India and sold to the customers in India by M/s.Tandus Flooring U.S. located in USA and M/s.Tandus Flooring China, located in China. The respondent-company is to undertake the responsibility of providing market and support services in relation to the carpets and floor

3 3 coverings proposed to be sold by Tandus U.S. and Tandus China to the customers located in India through their own dealers or directly. In consideration of the services to be provided by the respondent-company, it was to receive service fees in freely convertible foreign exchange from Tandus US and Tandus China. Thus it was proposed that the agreement between the respondent and the foreign manufacturers was limited to the respondent- Company acting as a communication channel between the Indian dealers, and Tandus U.S. and Tandus China. The respondent-company approached the Authority For Advance Rulings (Central Excise, Customs and Service Tax), New Delhi, (for short Authority ) under Section 96C of the Finance Act, 1994, (hereinafter referred to as the Act of 1994 for brevity) seeking an advance ruling on the following questions: Question No.1 : What would be the place of provision of the marketing and support services provided by Tandus India to Tandus US and Tandus China in terms of the Place of Provision of Service Rules 2012 (introduced

4 4 vide Notification No.28/2012-S.T. Dated ) Question No.2 : Whether the marketing and support services provided by Tandus India to Tandus US and Tandus China would qualify as export of taxable services under Rule 6A of the Service Tax Rules, 1994 (as amended from time to time) (introduced vide Notification No.2/94 S.T. dated After considering the provisions of Rule 6A of Service Tax Rules, 1994 (hereinafter referred to as the Rules of 1994 for brevity) as well as the Rule 3 of the Place of Provision of Service Rules, 2012 (hereinafter referred to as the Rules of 2012 for brevity) and other relevant provisions of the Finance Act, 1994 and also on the concession made by the Commissioner of Service Tax, the Authority answered the said questions in the following manner: 1. The place of provision of service to be provided by the applicant to Tandus China and Tandus US shall be the location of the service recipients, i.e. in China and US respectively, in accordance with Rule 3 of Place of Provision of Service Rules, 2012; and 2. The provision of service by the applicant to the two recipients named above will amount to export of service within the

5 5 meaning of Rule 6A of Service Tax Rules, Challenging the said order dated passed by the Authority for Advance Rulings, this writ petition has been filed by the Commissioner of Service Tax. 3. We have heard Sri Jeevan J.Neeralgi, learned Counsel appearing for the petitioner as well as Sri Prasad Paranjape, learned Counsel appearing for the respondent and perused the record. 4. The submission of the learned Counsel for the petitioner is two fold: Firstly, that the case on hand was covered by the exception carved out by Rule 9(c) of the Rules of 2012 and as such, the non-applicability of service tax on the respondent-company was not justified in law; and secondly, that the concession given by the Commissioner of Service Tax (writ petitioner) was in ignorance of or without considering the subsequent Circular dated , which had clarified the earlier Circular dated

6 6 5. Learned Counsel for the respondent has however submitted that no ground whatsoever has been taken in the writ petition that the concession given by the Commissioner was wrong or ought not to have been given; or that the subsequent clarificatory circular dated was placed before the Authority and not considered. 6. Learned Counsel for the respondent has further submitted that on merits, the order of the Authority is perfectly justified in law because according to the respondent, the definition of intermediary as it existed on the date of the Ruling, would not cover the respondent-company and as such, the provisions of Rule 9(c) of the Rules of 2012, would not be applicable and was thus, rightly not considered by the Authority nor the applicability of the said provision was ever raised by the petitioner (Commissioner of Service Tax) before the Authority. 7. Sri Prasad Paranjape, learned Counsel for the respondent has however submitted that the

7 7 definition of intermediary given in Rule 2 (f) of the Rules of 2012, has undergone a change by way of an amendment, which came into effect on and as such, by virtue of Section 96E of the Act of 1994, the Ruling of the Authority, which is impugned in this petition, would become inapplicable after i.e., the date when the amendment has been brought into effect. 8. Having heard learned Counsel for the parties and considering the facts and circumstances of this case, we are of the opinion that no interference is called for with the order of the Authority which is impugned in this writ petition. An order which has been passed on a concession given by the Commissioner cannot be challenged by the Commissioner himself. It is not the case of the writ petitioner (Commissioner) that certain material and the relevant Circulars were placed before the Authority and were not considered. After considering the entire case on merits and deciding in favour of the respondent-company, the questions raised were

8 8 answered in favour of the assessee on merits and also on the basis of the concession given by the Commissioner that the case of the respondent- Company was covered by the Circular of the Department dated The Commissioner cannot be permitted to now turn around and challenge the said order which was passed by the Authority on the basis of his own statement. 9. Even on merits, what is being canvassed before this Court in the writ petition is something which was not raised before the Authority. The Authority has considered the provisions of Rule 6A of the Rules of 1994, relating to Export of services and after holding that the respondent satisfies all the conditions laid down in clauses (a) to (f) of the subrule (1) of Rule 6A of the Rules of 1994, it proceeded to answer the questions in favour of the assessee. 10. Learned Counsel for the petitioner has submitted before this Court that the place of provision of service, would, in the present case, be within India and not outside India, by virtue of the

9 9 exception carved out under Rule 9(c) of the Rules of The said question was not raised before the Authority. For deciding the said question, facts have to be examined as to whether the service being provided by the respondent-company was intermediary service or not? 12. Such factual aspect of the matter having not been raised before the Authority cannot, for the first time, be raised in the writ petition. A new ground cannot be taken in the writ petition, especially, when the same is a ground relatable to facts and not solely on a question of law. In such view of the matter, on this ground also, we would not be inclined to interfere with the order of the Authority. 13. In view of the fact that the respondent has itself admitted that by amendment (which has come into effect from ) incorporated in Rule 2 (f) of the Rules of 2012, the definition of intermediary has undergone a change, the Ruling which has been

10 10 given by the Authority and is impugned in this writ petition, would have a binding effect only upto and not thereafter. As such, we clarify that the effect of the Ruling dated given by the Authority shall not be applicable in the case of the respondent-company, after The matter as to whether the services provided by the respondent-company would be taxable after or not, would be a matter to be decided by the authorities below and this Court is not expressing any opinion with regard to the effect of the amendment in the case of the respondent- Company. 15. With the aforesaid observations, the writ petition stands dismissed. No order as to costs. Sd/- JUDGE Sd/- JUDGE JT/-

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