- (1.) This appeal by the Revenue under Sec. 35G of the Central Excise Act, 1944 read with Sec. 83 of the Finance Act, 1994 ('said Act') challenges the order dated 28 -12 -2010 [2011 (22) S.T.R. 187 (Tri. -Mum.)] passed by the Customs, Excise and Service Tax Appellate Tribunal ('the Tribunal'). The appellant has formulated the following questions of law for consideration of this court: (a) Whether in the facts and circumstances of the case and in law the Tribunal has rightly considered Boards' Circular No. 59/8/2003, dated 20 -6 -2003, Clause (105) of Sec. 65 of the Finance Act, 1994 as well as Rule 2(1)(d)(iv) of the Service Tax Rules, 1994 in case of M/s. Maersk (I) Ltd.? (b) Whether in the facts and circumstances of the case and in law the Tribunal is correct in confirming the order passed by the Commissioner (Appeals) without taking into consideration the GATS agreement wherein it is clearly mentioned that the employees deputed by M/s. Maersk (I) Ltd. for training abroad will fall under import of service and these services are utilised by M/s. Maersk (I) Ltd. in their business activities which are squarely liable for payments of service tax on these services consumed in their business activities? (c) Whether in the facts and circumstances of the case and in law the Tribunal is correct in dismissing the appeal of the department when the CESTAT has agreed that the services were received by Maersk employee abroad and the coaching fee was reimbursed by Maersk and these employees were sent by Maersk outside, they have not gone abroad in individual capacity, employees sent abroad were part of Maersk only, so if they paid the fees first and later it was reimbursed by the Maersk does not make any difference as ultimately Maersk has incurred that cost?
(2.) In substance all the three questions can be collectively framed as, whether on the facts and circumstances of the case the Tribunal was correct in holding that no service tax is payable for the period 1 -7 -2003 to 30 -9 -2006 in respect of coaching services received abroad by the employees of the respondent -assessee?
(3.) Briefly the facts leading to this appeal are as under: (a) During the period 1 -7 -2003 to 30 -9 -2006, the employees of the respondent assessee were sent outside India to receive training from institute abroad. These training institutes did not have any office in India. The employees paid for themselves and were thereafter reimbursed by the respondent. (b) On 20 -10 -2006, the appellant issued a demand notice demanding service tax of Rs. 2.48 lacs for the period 1 -7 -2003 to 30 -9 -2006 under Sec. 73 of the said Act. The notice was issued to the respondent as a recipient of services liable to discharge service tax under Rule 2 of the Service Tax Rules, 1994. The basis of the demand was that the respondent's employees received training abroad and the same were liable to service tax under the category of 'Commercial Training' and 'Coaching Services' under the Sec. 65(105)(zzc) of the said Act. The demand for the period 1 -7 -2003 to 18 -4 -2006 was under Sec. 68(2) of the Act while the demand for the period 19 -4 -2006 to 30 -9 -2006 was under Sec. 66A of the Act read with Rule 3 of Taxation of Service (Provided from outside India and Received in India) Rule, 2006. (c) The Assistant Commissioner of Service Tax by an order dated 10 -4 -2008 confirmed the notice demanding Rs. 2.48 lacs and also imposed penalties of Rs. 2.52 lacs each under Ss. 76 and 78 of the said Act respectively. (d) In first appeal the Commissioner of Central Excise (Appeals) by an order dated 16 -10 -2009 held that no service tax was payable in respect of services falling under Sec. 65(105)(zzc) of the said Act as the same were fully performed outside India. Consequently, the order dated 10 -4 -2008 of the Assistant Commissioner of Service Tax was set aside.;