JUDGMENT K.S. Jhaveri, J. - In both these appeals since identical questions of law and facts are involved, they are decided by this common judgment. 2. By way of these appeals, the appellant has challenged the judgment and order of the Tribunal [2016 (42) S.T.R. 537 (Tribunal)] whereby the Tribunal has allowed the appeal of the assessee. 3. This court while admitting the appeals framed the following question of law :- D.B. Central Excise Appeal No. 22/ 2016 and 47/2016 "1. Whether a service not being delivered outside India and not used outside India can be termed as export in violation of provisions of Export of Service Rules, 2005 and whose effective use and enjoyment was in India, in terms of the Board Circular No. 141/10/2011-ITU, dated 13-5-2011." 4. The facts of the case are that proceeding is initiated in view of Show Cause Notice issued under C. No. V(H)ST/Adj-I/49/2007/1483-15, dated 21-5-2007 to M/s. National Engineering Industries Ltd., Khatipura Road, Jaipur (hereinafter also referred to as "the assessee") who are holding Service Tax Registration No. 101/ST/AMC/JPR-II/03, and were engaged in providing services of Commission Agent falling under the category of Business Auxiliary Services under Chapter V of the Finance Act, 1994. They appeared to have not paid Service Tax amounting to Rs. 49,99,770/- during the period from January, 2006 to December, 2006 in contravention of provision of Section 68 of the Finance Act, 1994 read with Rule 6 of the Service Tax Rules, 1994 as per facts detailed below. The assessee were not paying service tax on the commission received in Foreign Currency for the services rendered in India, the details of commission were called for from the assessee, who vide their letter dated 22-1-2007 submitted that they had received commission (amounting to Rs. 4,41,43,881/-) in Foreign Currency for the service rendered in India for the period from January, 2006 from M/s. NTN Corporation, Singapore, NTN Corporation, Japan and NTN Corporation, USA. 5. Counsel for appellant Mr. Ranka has taken us to the order of the original authority wherein it has been observed as under : 11. The assessee is appointed as distributor by the foreign company to promote sales of their product in India. They get commission on the imports into India when orders are placed through them. 5. Counsel for appellant Mr. Ranka has taken us to the order of the original authority wherein it has been observed as under : 11. The assessee is appointed as distributor by the foreign company to promote sales of their product in India. They get commission on the imports into India when orders are placed through them. The assessee thus finds buyers in India for the product of foreign seller and procure orders from the Indian buyers for supply of product by the foreign seller to Indian buyer. Indian buyer makes payment to the foreign seller and in turn the foreign seller pays commission to assessee. One more option is available in the Distributorship Agreement where the buyer can opt for payment of commission directly to assessee which is separately indicated in the sale invoice. In such a case the amount of commission is not passed on to the seller by the buyer. Where the buyer pays price inclusive of commission to the foreign seller the portion of the commission from the price is paid by the seller to NEI. Thus, when the amount paid by the Indian buyer in foreign currency to the foreign seller which is inclusive of assessee commission the foreign seller pays the commission portion out of the price to assessee in foreign currency. Where the Indian buyer pays that portion out of the price to assessee in foreign currency. Where the Indian buyer pays that portion of price which represents commission, directly to assessee in that case NEI do not get commission from seller in foreign currency but gets from the Indian buyer either directly or through the route of foreign seller. The commission received by NEI in foreign currency from the foreign seller is from foreign currency remitted by the Indian buyer. The order for import are procured in India and goods against such orders are imported into India and the portion of commission in foreign currency gets remitted from India which is received back in India. Thus, the cycle of service starts from India and finishes in India. In other words, it is the same foreign currency remitted out of India is rotating back to India. Such a service cannot qualify to be the export of service for exemption from service tax. 12. Thus, the cycle of service starts from India and finishes in India. In other words, it is the same foreign currency remitted out of India is rotating back to India. Such a service cannot qualify to be the export of service for exemption from service tax. 12. The Distributor agreement also has a provision that where the assessee itself purchases product from foreign principles as a buyer in that case they do not get any commission from the seller. The reason is that assessee do not remit that portion of the price to the seller which represents their commission, therefore, the seller do not give any commission to NEI. It is, therefore, service relating to import of goods in to India from a particular foreign seller where the amount of commission is paid to the assessee in Indian currency directly by the buyer or paid to seller who in turn remits to assessee. Therefore, any foreign currency paid by an Indian buyer which is returned to an other Indian person in foreign currency in India is not export of service in foreign currency and do not get covered within the scope of Export of Services Rules, 2005 for exemption from Service Tax. All the arguments made by the Assessee that it is export of service to a foreign recipient against which value of service is received from foreign in foreign currency are not valid. It is the service which starts from the procurement of order from a buyer in India and ends with the import of goods into India and the value of the service is paid from India and received in India through a foreign person, therefore, it is a service neither delivered outside India nor used outside India. The payment starts in Indian Rupees from the buyer which gets converted into foreign currency for remittance to foreign seller from whom the same is returned in foreign currency and gets reconverted to Indian currency for credit into Assessee''s account. In actual terms it is not a service where foreign currency has been earned from foreign. 13. Another fact has been brought out by the Assessee that NTN Bearing Singapore (Pte), Singapore has an office in New Delhi in India and that NTN Bearing Singapore (Pte), Singapore is wholly owned subsidiary of NTN Corporation, Japan. In actual terms it is not a service where foreign currency has been earned from foreign. 13. Another fact has been brought out by the Assessee that NTN Bearing Singapore (Pte), Singapore has an office in New Delhi in India and that NTN Bearing Singapore (Pte), Singapore is wholly owned subsidiary of NTN Corporation, Japan. They have submitted that having office of a subsidiary company in India does not amount to an office of a holding company. By this they are trying to justify that the foreign recipient of the service do not have any office in India, therefore, service do not get provided in India. The Distributorship to the assessee has been given by the foreign principles through an Agreement. The assessee and foreign parties NTN and NTN-Singapore in a common agreement entered into this Distribution Agreement for products Bearing including Bearing Units'' manufactured by NTN or NTN''s subsidiaries. If the office of any of the subsidiaries of NTN, more particularly office of NTN Singapore who itself is a specific party in the agreement, if has an office in India, serves the purpose of having service receiver''s office in India. NTN, Singapore is not a third person it is a direct party in the common agreement for promotion of sale of products of NTN as well as its subsidiaries. Therefore, a subsidiary which is a party to the combined distribution Agreement and has an office in India shall satisfy to the fact that the recipient of service has an office in India. In this case a party to the common agreement has their office in New Delhi, India. Therefore, on this account also the Assessee is liable to pay service tax in respect of amounts received from all or any one of the parties to the common agreement. 6. He has also taken us to the order of Commissioner (Appeal) wherein it has been observed as under : "I have also gone through the written submission referred to above and hold that the Board Circular dated 24-2-2009 referred to above is applicable to such cases where services were provided on or after 1-3-2007 when Export of Services Rules, 2005 were amended by Notification No. 2/2007-S.T., dated 1-3-2007. The consequences of these amendments were that the words "such service is delivered outside India and used outside India" were replaced by the words "such service is provided from India and used outside India". Prior to 1-3-2007, the prerequisite to qualify such service under export was that the services shall be delivered outside India and used outside India. In the case of the appellant, it is evident that the services were performed in India by the appellant, so in any case it cannot be attributed as delivered outside India. It is admitted that the service provided by the appellant were accrued to the service recipient abroad but by that factor only it cannot be said that the services so provided by the appellant are covered in the scope of export. In the given facts of the case, I find that the services were not delivered outside India but the same were delivered in India so such services were outside the scope of export and liable to service tax. The appellant another argument that they have received the entire payment for the service rendered by them in convertible foreign exchange also seems to be not tenable because in the impugned order it has been categorically discussed that in cases the Indian buyer pays that portion of price which represents commission, directly to assessee (the appellant) in that case NEI (appellant) do not get commission from seller in foreign currency but get from the Indian buyer in Indian rupee. Hence the findings of the adjudicating authority clearly indicate that the appellant was also receiving certain payments in Indian rupees. The appellant has also pleaded that the instructions/circulars issued by the Board are binding on all the field formation, and in support of such argument they also cited decision of Hon''ble Supreme Court in case of Randey Micro Nutrients vs. CCE - reported in 1996 (87) E.L.T. 19 , As already discussed, the Board Circular dated 24-2-2009 is not applicable to the such cases of providing services prior to 1-3-2007, so this pleading of the appellant does not advance their case. I therefore uphold the order of confirmation of demand with interest. 7. He has taken us to the finding of the Tribunal which reads as under : 4. We have considered the contentions of both sides. I therefore uphold the order of confirmation of demand with interest. 7. He has taken us to the finding of the Tribunal which reads as under : 4. We have considered the contentions of both sides. In case of the commission received for procuring orders from the Indian buyers to whom the goods were directly supplied by the foreign supplier, the service rendered clearly satisfied the requirement of the same being the export of service as has been held by CESTAT in the case of Paul Merchants (supra). Even in the other situation where the commission is paid by the indian buyers to the appellant as per arrangement with the foreign supplier instead of the commission alongwith price being first remitted to the foreign supplier and then the foreign supplier sending the commission to the appellant, in effect the commission was paid to the appellant on behalf of the foreign supplier only and can be deemed to have been paid in foreign exchange as the buyers would have had to remit the commission part also to the foreign supplier who would have in turn sent it to the appellant. This arrangement thus makes the procedure simpler without any material difference with regard to foreign exchange implication to India. We find that in the case of J.B. Boda - 1997 (229) ITR 271 (SC) the Supreme Court has deemed such payments to be in foreign exchange. Thus we find that the issue is covered in the appellant''s favour by the judgment of CESTAT in the case of Paul Merchants (supra) read with judgement of the Supreme Court in the case of J.B. Boda - 1997 (229) ITR 271 (SC). Accordingly, we do not find the impugned order to be sustainable. The appeal is allowed. 8. The basic contention of Mr. Ranka is that the business auxiliary services which has been defined under sub-section (19) of Section 65 which reads as under :- (19) "Business auxiliary service" means any service in relation to - (i) Promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) Promotion or marketing of service provided by the client; or (iii) Any customer care service provided on behalf of the client; or (iv) Procurement of goods or services, which are in puts for the client; or [Explanation. - For the removal of doubts, it is hereby declared that for the purposes of this sub-clause, "inputs" means all goods or services intended for use by the client] (v) Production or processing of goods for, or on behalf of, the client (vi) Provision of service on behalf of the client; or (vii) a service incidental or auxiliary to any activity specified in sub-clauses (i) to (vi), such as billing, issue or collection or recovery of cheques, payments, maintenance of accounts and remittance, inventory management, evaluation or development of prospective customer or vendor, public relation services, management or supervision and includes services as a commission agent, but does not include any activity that amounts to manufacture of excisable goods. Explanation. - For the removal of doubts, it is hereby declared that for the purposes of this clause, (a) "Commission agent" means any person who acts on behalf of another person and causes sale or purchase of goods, or provision or receipt of services, for a consideration, and includes any person who, while acting on behalf of another person - (i) Deals with goods or services or documents of title to such goods or services; or (ii) Collects payment of sale price of such goods or services; or (iii) Guarantees for collection or payment for such goods or services; or (iv) undertakes any activities relating to such sale or purchase of such goods or services; (b) "Excisable goods" has the meaning assigned to it in clause (d) of section 2 of the Central Excise Act, 1944 (1 of 1944); (c) "Manufacture" has the meaning assigned to it in clause (f) of section 2 of the Central Excise Act, 1944 (1 of 1944); 9. He has also taken us to Rule 3 of Export of Services Rules, 2005 which is reproduced as under :- (3) in relation to taxable services, other than, - (i) the taxable services specified in sub-clauses (a), (f), (h), (i), (j), (l), (m), (n), (o), (p), (q), (s), (t), (u), (v), (w), (x), (y), (z), (zb), (zc), (zi), (zj), (zn), (zo), (zq), (zr), (zt), (zu), (zv), (zw), (zza), (zzc), (zzd), (zzf), (zzg), (zzh), (zzi), (zzj), (zzl), (zzm), (zzn), (zzo), (zzp), (zzq), (zzs), (zzt), (zzv), (zzw), (zzx) and (zzy); and (ii) the taxable service specified in sub-clause (d) as are provided in relation to an immoveable property, of clause (105) of section 65 of the Act, - (iii) such taxable services which are provided and used in or in relation to commerce or industry and the recipient of such services is located outside India : Provided that if such recipient has any commercial or industrial establishment or any office relating thereto, in India, such taxable services provided shall be treated as export of services only if - (a) order for provision of such service is made by the recipient of such service from any of his commercial or industrial establishment or any office located outside India; (b) service so ordered is delivered outside India and used in business outside India; and (c) payment for such service provided is received by the service provider in convertible foreign exchange; (ii) such taxable services which are provided and used, other than in or in relation to commerce or industry, if the recipient of the taxable service is located outside India at the time when such services are received. 10. He has also taken us to details of services in respect of which criterion of location of recipient of service outside India is prescribed and he has pointed out that advertising agency''s service, business auxiliary services, business support services and information technology software services are relevant for the purpose of consideration. 11. He has also taken us through the circular issued by the ministry of finance dated 24th February, 2009 where Clause 3A and 3 reads as under :- 2. The matter has been examined. 11. He has also taken us through the circular issued by the ministry of finance dated 24th February, 2009 where Clause 3A and 3 reads as under :- 2. The matter has been examined. Sub-rule (1) of rule 3 of the Export of Services Rule, 2005 categorizes the services into three categories : (i) Category (I) [Rule 3(1)(i)] : For services (such as Architect service, General Insurance service, Construction service, Site Preparation service) that have some nexus with immovable property, it is provided that the provision of such service would be ''export'' if they are provided in relation to an immovable property situated outside India. (ii) Category (II) [Rule 3(1)(ii)] : For services (such as Rent-a-Cab operator, Market Research Agency service, Survey and Exploration of Minerals service, Convention service, Security Agency service, Storage and Warehousing service) where the place of performance of service can be established, it is provided that provision of such services would be ''export'' if they are performed (or even partly performed) outside India. (iii) Category (III) [Rule 3(1)(iii)] : For the remaining services (that would not fall under category I or II), which would generally include knowledge or technique based services, which are not linked to an identifiable immovable property or whose location of performance cannot be readily identifiable (such as, Banking and Other Financial services, Business Auxiliary services and Telecom services), it has been specified that they would be ''export'', - (a) If they are provided in relation to business or commerce to a recipient located outside India; and (b) If they are provided in relation to activities other than business or commerce to a recipient located outside India at the time when such services are provided. 3. It is an accepted legal principle that the law has to be read harmoniously so as to avoid contradictions within a legislation. Keeping this principle in view, the meaning of the term ''used outside India'' has to be understood in the context of the characteristics of a particular category of service as mentioned in sub-rule (1) of rule 3. For example, under Architect service (a Category I service [Rule 3(1)(i)]), even if an Indian architect prepares a design sitting in India for a property located in U.K. and hands it over to the owner of such property having his business and residence in India, it would have to be presumed that service has been used outside India. For example, under Architect service (a Category I service [Rule 3(1)(i)]), even if an Indian architect prepares a design sitting in India for a property located in U.K. and hands it over to the owner of such property having his business and residence in India, it would have to be presumed that service has been used outside India. Similarly, if an Indian event manager {a Category II service [Rule 3 (1)(ii)]} arranges a seminar for an Indian company in U.K. the service has to be treated to have been used outside India because the place of performance is U.K. even though the benefit of such a seminar may flow back to the employees serving the company in India. For the services that fall under Category III [Rule 3(1)(iii)], the relevant factor is the location of the service receiver and not the place of performance. In this context, the phrase ''used outside India'' is to be interpreted to mean that the benefit of the service should accrue outside India. Thus, for Category III services [Rule 3(1)(iii)], it is possible that export of service may take place even when all the relevant activities take place in India so long as the benefits of these services accrue outside India. In all the illustrations mentioned in the opening paragraph, what is accruing outside India is the benefit in terms of promotion of business of a foreign company. Similar would be the treatment for other Category III [Rule 3(1)(iii)] services as well. 12. He has further drew attention to the circular dated 13th May, 2011 relevant part of which of reads as under :- 2. In the stated Circular it was inter alia, clarified that the words, "used outside India" should be interpreted to mean that "the benefit of the service should accrue outside India". It is well known that services, being largely intangibles, are capable of being paid from one place and actually used at another place. Such arrangements commonly exist where the services are procured centrally e.g., audit, advertisement, consultancy, Business Auxiliary Services. For example, it is possible to obtain a consultancy report from a service provider in India, which may be used either at the location of the customer or in any other place outside India or even in India. Such arrangements commonly exist where the services are procured centrally e.g., audit, advertisement, consultancy, Business Auxiliary Services. For example, it is possible to obtain a consultancy report from a service provider in India, which may be used either at the location of the customer or in any other place outside India or even in India. In a situation where the consultancy, though paid by a client located outside India, is actually used in respect of a project or an activity in India the service cannot be said to be used outside India. 3. It may be noted that the words "accrual of benefit" are not restricted to mere impact on the bottom-line of the person who pays for the service. If that were the intention it would render the requirement of services being used outside India during the period prior to 28-2-2010 infructuous. These words should be given a harmonious interpretation keeping in view that during the period upto 27-2-2010 the explicit condition was provided in the rule that the service should be used outside India. In other words, these words may be interpreted in the context where the effective use and enjoyment of the service has been obtained. The effective use and enjoyment of the service will of course depend on the nature of the service. For example, effective use of advertising services shall be the place where the advertising material is disseminated to the audience though actually the benefit may finally accrue to the buyer who is located at another place. 4. This, however, should not apply to services which are merely performed from India and where the accrual of benefit and their use outside India are not in conflict with each other. The relation between the parties may also be relevant in certain circumstances, for example, in case of passive holding/subsidiary companies or associated enterprises. In order to establish that the services have not been used outside India the facts available should inter alia, clearly indicate that only the payment has been received from abroad and the service has been used in India. It has already been clarified that in case of call centers and similar businesses which serve the customers located outside India for their clients who are also located outside India, the service is used outside India. It has already been clarified that in case of call centers and similar businesses which serve the customers located outside India for their clients who are also located outside India, the service is used outside India. 12.1 He has also pointed out decision of the Supreme Court in All India Federation of Tax Practitioners and Ors. vs. Union of India (UOI) and Ors. - 2007 (7) SCC 527 = 2007 (7) S.T.R. 625 (S.C.) wherein it has been held as under :- It is clear that Service Tax is a VAT which in turn is destination based consumption tax in the sense that it is on commercial activities and is not a charge on the business but on the consumer and it would, logically, be leviable only on services provided within the country. Service tax is a value added tax. 33. Applying the above tests laid down in the aforestated judgments to the facts of the present case, we find that Entry 60 of List II, mentions ''Taxes on professions, trades, callings and employments''. Entry 60 is a taxing entry. It is not a general entry. Therefore, we hold that tax on professions etc. has to be read as a levy on professions, trades, callings etc., as such. Therefore, Entry 60 which refers to professions cannot be extended to include services. This is what is called as an Aspect Theory. If the argument of the appellants is accepted, then there would be no difference between interpretation of a general entry and interpretation of a taxing entry in List I and List II of the Seventh Schedule to the Constitution. Therefore, ''professions'' will not include services under Entry 60. For the above reasons, we hold that Parliament had absolute jurisdiction and legislative competence to levy tax on services. While interpreting the legislative heads under List II, we have to go by schematic interpretation of the three Lists in the Seventh Schedule to the Constitution and not by dictionary meaning of the words ''profession'' or ''professional'' as was sought to be argued on behalf of the appellants otherwise the distinction between general entries and taxing entries under the three Lists would stand obliterated. The words ''in relation to'' and the words ''with respect to'' are no doubt words of wide amplitude but one has to keep in mind the context in which they are used. 36. The words ''in relation to'' and the words ''with respect to'' are no doubt words of wide amplitude but one has to keep in mind the context in which they are used. 36. In one case, the question arose whether Parliament was entitled to impose income tax on pension under Entry 82 of List I. The controversy was that ''pension'' is a retiral benefit. It was argued that pension was an incident of ''employment'' and, therefore, Parliament had no legislative competence to impose income tax under Entry 82 of List I and that the State Legislature alone had absolute jurisdiction to make a law imposing tax on pension. This argument was rejected on the ground that Entry 60 of List II refers to ''Tax on employments'', as such. So long as a person is in the employment, he does not earn pension. He earns pension only on retirement. On retirement, he ceases to be in the employment, therefore, on retirement the receipt of pension constitutes ''income'' in the hands of the pensioner and, therefore, Parliament had legislative competence to enact Income Tax Act, 1961 under which pension was taxable as income. This example demonstrates the meaning of the word ''Taxes on professions, callings, trades and employments''. It also indicates two aspects of the same item, namely, pension. One aspect falls in the category of ''employment'', the other falls in the category of ''income''. Therefore, there is no merit in the contention advanced on behalf of the appellant that the widest possible interpretation should be given to the word ''profession'' in Entry 60 List II. We have to keep in mind while interpreting the Entries in the three Lists the distinction between the general entry and the taxing entry. 38. According to the appellant, Western India Theatres were entertainment providers; that they were not entertainment receivers; that they simply carried on their profession, trade or calling and, therefore, Entry 50 was not applicable. It was further urged that entertainment-providers fell under Entry 46, which Entry is similar to Entry 60 of List II in the present case and which referred taxes on professions, trades, callings and employments. This argument advanced on behalf of the appellant was rejected by this Court. It was further urged that entertainment-providers fell under Entry 46, which Entry is similar to Entry 60 of List II in the present case and which referred taxes on professions, trades, callings and employments. This argument advanced on behalf of the appellant was rejected by this Court. It was held that Entry 50 contemplated a tax on entertainment and amusement as objects on which a tax is to be imposed and, therefore, it was not possible to differentiate between the entertainment-provider and the entertainment-receiver. It was held that entertainment was trade or calling of Western India Theaters and, therefore, the tax imposed on entertainment under the Cantonment Act came within Entry 50 of the Provincial List. The importance of this judgment lies in the fact that this judgment makes a distinction between tax imposed for the privilege of carrying on any trade or calling on one hand and a tax on every show that is to say on every incidence of the exercise of the particular trade or calling. It was held that if there was no show, there was no tax. 46. In the case of International Tourist Corporation and Ors. vs. State of Haryana and Ors. : reported in (1981) 2 SCR 364 the appellants were transport operators. The State of Haryana levied a tax on passengers and goods under the Haryana Passengers and Goods Taxation Act, 1952. The appellants questioned the vires of Section 3(3) insofar as the levy of tax on passengers and goods carrying by their vehicles plying along the National Highway. It was urged on behalf of the appellants that there was nothing in the Constitution to prevent Parliament from combining its power to legislate with respect to any matters enumerated in Entries 1 to 96 of List I with its power to legislate under Entry 97 of List I and, if so, then the power to legislate with respect to tax on passengers and goods carried on National Highway was within the exclusive legislative competence of Parliament and, therefore, Section 3(3) of Haryana Passengers and Goods Taxation Act, 1952 was beyond the legislative competence of the State Legislature. This argument was rejected by the Division Bench of this Court, which took the view that before exclusive legislative competence can be claimed for Parliament by resort to Entry 97 List I, the legislative competence of the State Legislature must be established. This argument was rejected by the Division Bench of this Court, which took the view that before exclusive legislative competence can be claimed for Parliament by resort to Entry 97 List I, the legislative competence of the State Legislature must be established. Entry 97 itself was specific. In that, a matter can be brought under that Entry only if it is not enumerated in Lists II or III, and in the case of a tax, if it is not mentioned in either of those Lists. We do not dispute the above proposition. That proposition is well settled. This Court is concerned with the application of the said principle in this case. In the present matter, as stated hereinabove, the State Legislature is empowered to levy tax on professions, trades, callings etc., as such and, therefore, the word ''services'' cannot be read as synonymous to the word ''profession'' in entry 60. Therefore, tax on services do not fall under Entry 60 List II. That, service tax would fall under Entry 92C/Entry 97 of List I. 36. In the case of Sodan Singh and Ors. vs. New Delhi Municipal Committee and Ors. : reported in (1989) 3 SCR 1038 the appellants claimed a right to engage in trading business on the pavements of Delhi city. In that context, it was held by the Constitution bench of this Court that, the guarantee under Article 19(1) (g) extends to practise any profession, or to carry on any occupation, trade or business. In that case, the word ''profession'' had been defined to mean an occupation carried on by virtue of specialized qualifications, personal qualifications, training or skill. We do not find any relevance of this judgment to the present case. As stated above, we are concerned with interpretation of legislative heads under the three Lists in the Seventh Schedule to the Constitution. As stated above, we have to go by the schematic interpretation of those entries. Moreover, we are concerned with a distinct taxing entries and not general entries. Hence, the judgment in the case of Sodan Singh (supra) has no application to the present case. 50. In the case of Bharat Sanchar Nigam Ltd. and Anr. vs. Union of India and Ors. : reported in (2006) 282 ITR 273 (SC) the question which arose for determination before this Court was whether a telephone service (mobile or fixed) would attract liability to service tax. 50. In the case of Bharat Sanchar Nigam Ltd. and Anr. vs. Union of India and Ors. : reported in (2006) 282 ITR 273 (SC) the question which arose for determination before this Court was whether a telephone service (mobile or fixed) would attract liability to service tax. It was held that in order to attract the liability under the service tax there has to exist what is called as ''goods''. Since goods in question consisted of electromagnetic waves or radio frequencies, which carries voice, messages or other data, a telephone service was nothing but a service. We are not concerned with such a controversy in the present case. In the present case, we are concerned with the legislative competence of Parliament to legislate in respect of service tax under Entry 97/92C of List I. In the present case, we are concerned with the period covered by the Finance Acts of 1994 and 1998. However, Learned Counsel for the appellants has relied upon para 82 of the said judgment in the case of Bharat Sanchar Nigam Ltd. (supra) in which it is observed that the residuary powers of Parliament under Entry 97 of List I cannot swamp away the legislative Entries in the State List. Entry 54, List II read with Article 366(29A), therefore, cannot be whittle down by referring to the residuary provision. As stated above, we are concerned with the application of the above principles. In the present case, as stated above, we are concerned with the Constitutional status of the levy. As stated above, we have to examine the nature of the levy. We have done so and we have come to the conclusion that the word profession in Entry 60 List II cannot be made synonymous with the word service and, therefore, service tax would fall under the residuary Entry 97 read with Entry 92C after 2003. This position is also made clear by Article 268A, inserted by the Constitution (Eighty-eighth Amendment) Act, 2003. 22. As stated above, the source of the concept of service tax lies in economics. It is an economic concept. It has evolved on account of Service Industry becoming a major contributor to the GDP of an economy, particularly knowledge-based economy. With the enactment of Finance Act, 1994, the Central Government derived its authority from the residuary Entry 97 of the Union List for levying tax on services. It is an economic concept. It has evolved on account of Service Industry becoming a major contributor to the GDP of an economy, particularly knowledge-based economy. With the enactment of Finance Act, 1994, the Central Government derived its authority from the residuary Entry 97 of the Union List for levying tax on services. The legal backup was further provided by the introduction of Article 268A in the Constitution vide Constitution (Eighty-eighth Amendment) Act, 2003 which stated that taxes on services shall be charged by the Central Government and appropriated between the Union Government and the States. Simultaneously, a new Entry 92C was also introduced in the Union List for the levy of service tax. As stated above, as an economic concept, there is no distinction between the consumption of goods and consumption of services as both satisfy human needs. It is this economic concept based on the legal principle of equivalence which now stands incorporated in the Constitution vide Constitution (Eighty-eighth Amendment) Act, 2003. Further, it is important to note, that ''service tax'' is a value added tax which in turn is a general tax which applies to all commercial activities involving production of goods and provision of services. Moreover, VAT is a consumption tax as it is borne by the client. 12.2 He has contended that in Paul Merchant's [reported in 2013 (29) S.T.R. 257 (Tri.)] decision by the Tribunal, there is difference of opinion as the third judicial member has referred the circular dated 13th May, 2011 and other two technical members have not referred and the matter is pending before the Punjab and Haryana High Court. 13. He has taken to the decision of Mumbai Tribunal in Life Care Medical Systems vs. Commissioner of Service Tax, Mumbai-II, (2012) 26 taxmann.com 271 which is in favour of the department wherein it has been observed as under : 6. We have perused the International Distribution Agreement entered into by the appellant with M/s. VIASYS International Corporation, Pennsylvania, USA. As per the said agreement, the appellant was required to render the following services in the states of Gujarat, Madhya Pradesh, Maharashtra, Goa and Chhattisgarh in the Republic of India, namely, - 1. to purchase at least the minimum $ amount specified in the said agreement; 2. As per the said agreement, the appellant was required to render the following services in the states of Gujarat, Madhya Pradesh, Maharashtra, Goa and Chhattisgarh in the Republic of India, namely, - 1. to purchase at least the minimum $ amount specified in the said agreement; 2. to use its best efforts to promote and sell the products in the territory allocated which shall be in addition to the minimum purchase requirements; 3. to demonstrate the products to the prospective customers and also install such products at the customers' locations and to provide training to the customers for the proper use of such products; 4. to provide its customers with warranties in a prompt and thorough manner and to respond to warranty requests within 24 hours of its initial receipt. 5. to promptly and completely translate all user and technical manuals as well as such advertising and marketing materials as the foreign manufacturer may from time-to-time provide for use in the country for promotion of the products within the territory. From the terms and conditions of the agreement, it is evident that the appellant was undertaking promotion and marketing of the goods manufactured by the foreign manufacturer, M/s. VIASYS International Corporation and also installation services, warranty services, advertising services etc. for the foreign principal. These services can be rendered by the appellant only within the territorial jurisdiction assigned which is in India and by the very nature of the services rendered, it is clear that the services were used within the territory of India. 7. Prior to 1-7-2003, Notification No. 6/99-S.T., dated 28-2-1999 exempted services provided to any person in respect of which payment is received in Indian in convertible foreign exchange. The said notification was rescinded and subsequently re-issued vide Notification No. 21/2003-S.T., dated 20-11-2003 and this Notification remained in force till 14-3-2005. During the intervening period i.e., from 1-3-2003 to 19-11-2003, the Board clarified vide Circular dated 25-4-2003 that "Service tax is a destination based consumption tax and it is not applicable on export of services. Export of services would continue to remain tax free even after withdrawal of Notification No. 6/99, dated 9-4-1999." in the light of this clarification issued by the Board, the assessee has a, prima facie, case for waiver of pre-deposit of dues adjudged for the period 1-7-2003 to 19-11-2003. 8. Export of services would continue to remain tax free even after withdrawal of Notification No. 6/99, dated 9-4-1999." in the light of this clarification issued by the Board, the assessee has a, prima facie, case for waiver of pre-deposit of dues adjudged for the period 1-7-2003 to 19-11-2003. 8. With regard to the period from 15-3-2005 onwards, we have to see whether the transaction undertaken by the assessee comes within scope of Export of Services Rules, 2005. During this period, under the Rules provided that a taxable service shall be treated as 'export of service' only if such service so ordered is delivered outside India and used in business outside India. In the instant case, the service of promotion of marketing of goods manufactured by the supplier has taken place in India and the said service is for the purpose of promoting the business of the foreign manufacturer in India. Therefore, it cannot be said that the service has been delivered outside India and used in business outside India; therefore, the activity does not come within the scope of export of service during the period from 15-3-2005 to 18-4-2006. 8.1 As regards the period from 19-4-2006 to 28-3-2007, the Rules provided that any taxable service shall be treated as 'export of service' when the following conditions are satisfied, namely, (a) such service is delivered outside India and used outside India and payment for such service provided outside India is received by the service provider in convertible foreign exchange. In the instant case, though the condition of receipt of payment in convertible foreign exchange is satisfied, the conditions relating to delivery of service outside India and the use of the service outside India are not satisfied because the promotional nativity undertaken by the service provider is in India and it can be used only in promoting the business in India. Therefore, the use of service is not outside India. The same position will prevail during the period up to 30-5-2007. Even for the period from 1-6-2007 onwards, the condition relating to service be provided from India and used outside India is not satisfied. Therefore, the demand of service tax for the period 18-32005 to 5-12-2007 appears to be prima facie correct in law. 9. The appellant has relied upon a few decisions of this Tribunal. Even for the period from 1-6-2007 onwards, the condition relating to service be provided from India and used outside India is not satisfied. Therefore, the demand of service tax for the period 18-32005 to 5-12-2007 appears to be prima facie correct in law. 9. The appellant has relied upon a few decisions of this Tribunal. In the case of Em Jay Engineers and Lenovo (India) Pvt. Ltd. (cited supra), the issue pertained to liability to service tax on the commission received for procuring orders in India and forwarding the same to their principals abroad. In that context, it was held that procurement of orders and forwarding the same to their principals abroad amount to delivery of service outside India and therefore, satisfies the definition of 'export of service' and, hence, no service tax is leviable. As regards SGS India Pvt. Ltd. (cited supra) the issue pertained to the period from 1-7-2003 to 19-11-2003 and based on the C.B.E. and C. Circular cited above, relief was granted. In the instant case also, we have already granted benefit of C.B.E. and C. Circular for the period 1-7-2003 to 19-11-2003. As far as the demand for the period thereafter, there is no delivery of service abroad in the instant case. When the appellant is undertaking the promotional activities by way of demonstration and installation of the foreign manufacturer's product in India and trains the customers in India for its use, there is no delivery outside India. Similarly, when warranty services are undertaken, the usage of the service is in India. So is the case when advertising the product in India is done. Thus, the facts involved in the present case before us are substantially different and therefore, the ratio of the above cited judgments cannot be adopted. 10. As regards the appellant's reliance of the Board's circular issued in 2009, the Board has clarified the matter further vide Circular No. 141/10/2011-TRU, dated 13-5-2011. The relevant portions of the said circular are extracted herein below :- Circular No. 111/05/2009-S.T. was issued on 24th February, 2009 on the applicability of the provisions of Export of Service Rules, 2005 in certain situations. The relevant portions of the said circular are extracted herein below :- Circular No. 111/05/2009-S.T. was issued on 24th February, 2009 on the applicability of the provisions of Export of Service Rules, 2005 in certain situations. It had clarified on the expression "used outside India" in Rule 3(2)(a) of the Export of Service Tax Rules, 2005 as prevalent at that time.....In the context of the stated circular, an issue has been raised, whether for the period prior to 28-2-2010 the requirement that the service should be "used outside India" invariably means the location of the recipient? 2. In the stated circular it was inter alia clarified that the words, "used, outside India" should be interpreted to mean that "the benefit of the service should accrued outside India". It is well known that services, being largely intangibles, are capable of being paid from one place and actually used at another place. Such arrangements commonly exist where the services are procured centrally e.g. audit, advertisement, consultancy, business auxiliary services. For example, it is possible to obtain a consultancy report from a service provider in India which may be used either at the location of the customer or in any other place outside India. In a situation where the consultancy, though paid by a client located outside India, is actually used in respect of a project or an activity in India, the service cannot be said to be used outside India. 3. It may be noted that the words "accrual of benefit" are not restricted to mere impact on the bottom-line of the person who pays for the service. If that were the intention it would render the requirement of services being used outside India during period prior to 28-2-2010 infructuous. These words should be given a harmonious interpretation keeping in view that during the period upto 27-2-2010 the explicit condition was provided in the rule that the service should be used outside India. In other words, these words may be interpreted in the context where the effective use and enjoyment of the service has been obtained. The effective use and enjoyment of the service will of course depend on the nature of the service. For example, effective use of advertising services shall be the place where the advertising material is disseminated to the audience though actually the benefit may finally accrue to the buyer who is located at another place. The effective use and enjoyment of the service will of course depend on the nature of the service. For example, effective use of advertising services shall be the place where the advertising material is disseminated to the audience though actually the benefit may finally accrue to the buyer who is located at another place. This, however, should not apply to services which are merely performed from India and where the accrual of benefit and their use outside India are not in conflict with each other........ In order to establish that the services have not been used outside India, the facts available should inter alia clearly indicate that only the payment has been received from abroad and the services have been used in India. ... The above clarification makes it very clear that to be considered as "used outside India", the effective use and enjoyment should be outside India. In the case of promotion/marketing of goods/services in India, which promotes the business in India of the client (who is located outside India), can it be said that the effective use and enjoyment is outside India. In our considered view, such an interpretation would be totally irrational and illogical. 11. The Hon'ble Apex Court in the case of All India Federation of Tax Practitioners [2007 (7) S.T.R. 625 (S.C.)] considered the nature of levy of service tax and elucidated the concept as follows :- 6. At this stage, we may refer to the concept of 'Value Added Tax (VAT), which is a general tax that applies, in principle, to all commercial activities involving production of goods and provision of services. VAT is a consumption tax as it is borne by the consumer. 7. In the light of what is stated above, it is clear that Service Tax is a VAT which in turn is destination based consumption tax in the sense that it is on commercial activities and is not a charge on the business but on the consumer and it would, logically, be leviable only on services provided within the country. Service tax is a value added tax. 8. As stated above, service tax is VAT. Just as excise duty is a tax on value addition on goods, service tax is on value addition by rendition of services. Therefore, for our understanding, broadly "services" fall into two categories, namely, property based services and performance based services. Service tax is a value added tax. 8. As stated above, service tax is VAT. Just as excise duty is a tax on value addition on goods, service tax is on value addition by rendition of services. Therefore, for our understanding, broadly "services" fall into two categories, namely, property based services and performance based services. Property based services cover service providers such as architects, interior designers, real estate agents, construction services, mandapwalas, etc. Performance based service are services provided by service providers like stock brokers, practicing chartered accountants, practicing cost accountants, security agencies, tour operators, event managers, travel agents etc. 11. At this stage, we may state that the above discussion shows that what was the economic concept, that there is no distinction between consumption of goods and consumption of services is translated into a legal principle of taxation by the aforesaid Finance Acts of 1994 and 1998. The above elucidation of the economic concept of service tax by the Hon'ble Apex Court makes it abundantly clear that to make the service activity leviable to tax, the services should be rendered in India. In the instant case, the service rendered is promotion/marketing of the goods of the client in India by rendering various services such as demonstration, installation, after sales warranty and advertising services for which the appellant received a consideration. These activities are rendered in India and their effective use and enjoyment are in India and therefore, the benefit of the services rendered also accrue in India and hence leviable to service tax. 12. The Export of Services Rules owes it origin to General Agreement on Trade and Tariff. In the 8th round of the GATT (Uruguay Round), negotiations were carried out in the area of services which led to the General Agreement on Trade in Services (GATS) to which India is a signatory. This Agreement recognized four modes of delivery of services in the case of exports. These are - 1. Cross Border - The service itself crosses the border 2. Consumption Abroad - The consumer travels across the border 3. Commercial Presence - Establishment of an office or industry 4. Movement of Natural Persons - The service supplier travels across the border. This Agreement recognized four modes of delivery of services in the case of exports. These are - 1. Cross Border - The service itself crosses the border 2. Consumption Abroad - The consumer travels across the border 3. Commercial Presence - Establishment of an office or industry 4. Movement of Natural Persons - The service supplier travels across the border. These principles can be diagrammatically represented as follows :- USER In India Outside India USE In India 1 (Taxable) 2 (Taxable) Outside India 3 (Taxable) 4 (Export) Thus only when the user and the use of the service are located outside India, the transaction amounts to export and not otherwise. In the case under consideration, the user is outside India but the use of the service is in India - situation 2 of the table above. In this situation, the transaction does not amount to export and hence taxable in India. 13. In the case of Microsoft Corporation (India) Pvt. Ltd. vs. Commissioner of Service Tax, Delhi [ 2009 (15) S.T.R. 680 ] this Tribunal held that when a service is provided in India and the same is consumed without reverting back to the foreign principals for consumption abroad, the ultimate outcome of service is exhausted in India and there is no export of services inasmuch as the benefit of service terminated in India without travelling abroad. In such a situation, merely because the service recipient is situated abroad, it cannot be said that services has been used outside India. This order was passed in the context of business auxiliary 'service' which is also the issue before us. This decision of the Tribunal was upheld by the Hon'ble High Court of Delhi in the same case reported in : 2009 (16) S.T.R. 545. Even though the above judgments were was passed in the context of a stay application, since we are also considering the stay application at present, the ratio can be applied. 14. The appellants have contended that the demands are barred by limitation of time inasmuch as the show cause notices have been issued by invoking the extended period of time. It is their contention that they have not suppressed any facts from the department and have claimed the benefit of bona fide belief and have relied on a few judgments in support of this contention. It is their contention that they have not suppressed any facts from the department and have claimed the benefit of bona fide belief and have relied on a few judgments in support of this contention. In the case of M/s. Interscape [ 2006 (198) E.L.T. 275 ], it was held that "bona fide belief is not blind belief and a belief can be said to be bona fide only when it is formed after all the reasonable considerations are taken into account". The agreement itself contains a clause relating to "Responsibility for Taxes and Duties" which reads as follows :- All taxes, now or hereafter imposed with respect to the transactions contemplated, hereunder (including value added taxes, sales and use taxes, customs and excise taxes or duties and other similar taxes or duties, but excluding income taxes or other taxes imposed upon Manufacturer and measured by the gross or net income of Manufacturer) shall be the responsibility of Distributor, and if paid, or required to be paid by Manufacturer, the amount thereof shall be added to and become part of the amounts payable by Distributor hereunder. The above clause in the agreement itself should have alerted the appellant about their tax liability and they should have taken appropriate steps to ascertain their liability either from the department or from experts on the subject. Further it is on record that the appellant is registered with the Service Tax Department for other services such as maintenance and repair and installation during the relevant period. Therefore, it cannot be said that they were ignorant of the provisions of law relating to service tax. The appellant failed to obtain service tax registration under business auxiliary service, failed to pay service tax and also failed to file statutory returns for the said services. They did not disclose to the department about the existence of the agreement with VIASYS and receipt of consideration towards the services rendered. These acts of the appellant clearly constitute suppression of facts on their part, thereby attracting the invocation of extended period of time for demand of service tax. 15. The appellant has not brought on record any evidence as to any financial hardship nor made any plea to the said effect in their submissions before us. These acts of the appellant clearly constitute suppression of facts on their part, thereby attracting the invocation of extended period of time for demand of service tax. 15. The appellant has not brought on record any evidence as to any financial hardship nor made any plea to the said effect in their submissions before us. The Hon'ble High Court of Andhra Pradesh in the case of SQL Star International Ltd. [2012 (276) E.L.T. 465 (A.P.) : 2012 (25) S.T.R. 113 (A.P.)] held that prima facie case, balance of convenience and irreparable loss of revenue has to be considered while considering application for stay. Stay cannot be granted merely on prima facie case being shown and balance of convenience must be clearly in favour of making of interim order, and there should not be the slightest likelihood of prejudice to interest of public revenue. In the present case, apart from the fact that no prima facie case has been shown, the balance of convenience lies clearly in favour of revenue. This Tribunal, being creature of statute, cannot ignore the statutory guidance while exercising the powers of interim stay. 14. However against that also the decision is pending before the Mumbai High Court. 15. He has also taken us to another decision of Star India Pvt. Ltd. vs. Commissioner of Central Excise, Thane-I - 2015 (38) S.T.R. 884 (Tri.-Mumbai) wherein it has been held as under :- "Broadcasting agency/Organization - Taxability of - Appellant engaged in activity of selling of time slots for broadcasting of any programme or obtaining sponsorships for programme or collecting broadcasting charges on behalf of star Hong Kong as its representatives - All Advertisements to be telecast in Star network channels are solicited by appellants either from Indian Advertisers or from Foreign Advertisers -Plea that service tax not leviable in respect o foreign advertisers who paid advertisement charges US$ directly not acceptable - Definitions of 'broadcasting agency and broadcasting service do not make any distinction based on how the payment is made or to whom it is made - Section 65(105)(zk) of Finance Act, 1994 attracted. Taxable event - Determination of - Payment made in foreign currency - Mode of payment of consideration for service rendered cannot be the cirteria for determination of taxable event - Taxable event is rendering of taxable service as defined in Section 65(105)(zk) of Finance Act, 1994 - Merely because payment is made in foreign currency, the nature of taxable event does not undergo any change. 16. He contended that in view of this, the services rendered by the assessee is required to be taxed. 17. He also relied upon another Bombay Tribunal judgment in Yamazaki Mazak India Pvt. Ltd. vs. Commissioner of Central Excise, Pune-I (3-2-2014-CESTAT -Mumbai) : 2016 (46) S.T.R. 616 (Tri.-Mum.) wherein it has been held as under :- 9. We have gone through the Agreements entered by the applicant with the Singapore firm which were entered into in 2009. As per one Agreement, the applicants undertake the marketing technical service of CNC machines, spares and accessories in India. In the second Agreement the applicants undertake the activity of promoting and marketing of spares and accessories in India manufactured and supplied by the Singapore firm. In respect of installation and commissioning of CNC applicants have paid appropriate Service Tax as provider of erection and commissioning service. The dispute in respect of other activities undertaken by the applicants on behalf of the Singapore firm such as sales and promotion of spare parts and accessories in India. The contention is that the service recipient is located outside India and service is used outside India, therefore as per the Export of Services Rules, 2005 the same is to be treated as export service and not liable to tax under the Finance Act. We find as per terms and conditions of the Agreements applicants undertake the sale and promotion of goods manufactured and supplied by the Singapore firm in India and the applicants undertake the activity of technical requirement of Indian customers, assisting the customers in providing an understanding of the various spares supplied by the Singapore firm. In addition to this, as per the Agreement applicants also to undertake the activity of assisting in evaluating the creditworthiness of potential customers in India. The relevant portion of the Agreement is reproduced below : "1. Activities to be performed by YMIN. YMIN shall primarily promote and market in India spares and accessories supplied by YMT. In addition to this, as per the Agreement applicants also to undertake the activity of assisting in evaluating the creditworthiness of potential customers in India. The relevant portion of the Agreement is reproduced below : "1. Activities to be performed by YMIN. YMIN shall primarily promote and market in India spares and accessories supplied by YMT. 1.1 Activities to be performed by YMIN specifically would involve the following : 1.1.1 Promoting and Marketing in India - spares and accessories by YMY : i. Understanding the technical requirements of the Indian Customers; ii. Assisting the customers in providing an understanding of the various spares supplied by YMT meeting its technical requirements; iii. Assistant in evaluating the creditworthiness of customers/potential customers; iv. Communicating the terms of the contract and the pricing decisions of YMT to prospective customers and acts as a channel of communication between YMT and existing/prospective customers. It is understood that YMIN will have no authority for concluding upon the terms and conditions for sale, including payment terms and pricing. 1.1.2 Spares Stock-and-Sale Activity. YMIN is free to carry on its own account the Stock-and-Sale activity. This would involve ascertaining and maintaining appropriate type and level of Spares Stock and supplying and selling requisite spares to the customers of YMT/YMS wherever needed by them. YMT and YMIN will mutually decide the price for supply of spares by YMT to YMIN. The sales pricing for the supply of spares to the customers of YMIN may be decided by YMIN in its sole discretion. 1.2 Activity/obligation of Collection of Receivables specifically excluded : YMIN in no case is responsible for any payment receivable to YMT from YMT's customers arising out of any transactions of sale or supply of spares to YMT customers. In other words, there is no obligation of collective of YMT Receivables as the activity is specifically excluded for performance by YMIN. 2. Obligation/Functions to be performed by YMT. The key functions to be performed by YMT are : i. Deciding upon the spares which will meet the requirements of the customer; ii. Deciding upon the creditworthiness of the customer, including deciding upon customer acceptance; iii. Determining the pricing of the spares to be sold in India, including the associated terms and conditions, and customer negotiations wherever essential; iv. Communicating with customer in India either directly or through YMIN." 10. Deciding upon the creditworthiness of the customer, including deciding upon customer acceptance; iii. Determining the pricing of the spares to be sold in India, including the associated terms and conditions, and customer negotiations wherever essential; iv. Communicating with customer in India either directly or through YMIN." 10. Applicants cited various decisions of the Tribunal after taking into consideration the terms and conditions held in favour of the assessee. In those cases the Tribunal was taking into consideration the activity undertaken by the assessee in respect of sale and promotion of the goods supplied by the foreign manufacturer. As per the terms and conditions of the Agreements in question, in addition to sale and promotion of the suppliers applicants activity in evaluating the creditworthiness of potential customers in India. Therefore in terms of the Agreements in the present case the ratio is not applicable to the facts and circumstances of the present case. 11. The applicants relied upon the provisions of Rule 3(2) of Export of Services Rules, 2005 which provides as under : "(2) The provision of any taxable service specified in sub-rule (1) shall be treated as export of service when the following conditions are satisfied, namely :- (a) such service is provided from India and used outside India; and (b) payment of such service is received by the service provider in convertible foreign exchange." 12. In view of the fact that the activities undertaken by the applicant under the Agreement for promotion and marketing of spare parts, obligation of collection of receivables, etc., in India hence it cannot be said that the service is used outside India. 13. In view of this prima facie the applicants have not made out a case for total waiver of the pre-deposit of the Service Tax. 14. Applicants also submitted that the demand is time-barred. The issue of limitation is a mixed question of facts and law which will be gone into at the time of final hearing. No financial hardship is pleaded before us. 15. Keeping in view the facts and circumstances of the case the applicants are directed to deposit amount equal to 50% of the Service Tax confirmed, within eight weeks. On deposit of the above mentioned amount, the pre-deposit of the remaining dues is waived and recovery thereof stayed for hearing the appeal. 18. No financial hardship is pleaded before us. 15. Keeping in view the facts and circumstances of the case the applicants are directed to deposit amount equal to 50% of the Service Tax confirmed, within eight weeks. On deposit of the above mentioned amount, the pre-deposit of the remaining dues is waived and recovery thereof stayed for hearing the appeal. 18. He contended that the Tribunal has lost sight of the fact that in the case J.B. Boda and Co. Ltd. vs. Central Board of Direct Taxes, (1996) 89 Taxman 311 (SC), the appellant has permission from RBI and do not apply in the facts of the case and same judgment was clarified by Calcutta High Court in Commissioner of Income-Tax vs. McLeod Russel (India) Ltd., (2014) 361 ITR 663 more particularly heading B which reads as under - Where money spent on account of brokerage or commission was deducted from the price of the goods and the balance amount was received in the country in foreign exchange, such amount would be excluded from export turnover for computation of deduction under section 80HHC. 19. Taking into consideration he contended that the view taken by the Tribunal is required to be reversed. 20. Counsel for the assessee has taken us to the show cause notice which reads as under : M/s. National Engineering Industries Ltd. Khatipura Road, Jaipur are also required to produce at the time of showing cause all the evidence upon which they intend to rely in support to their defence. They are also required to state whether they wish to avail the opportunity to be heard person before the case is adjudicated, if no mention is made in the written reply. It will be presumed that they do not desire any personal hearing. If no cause is shown against the action proposed be taken within 30 days of receipt of this notice, or they do not appear before the adjudicating authority when the case is posted for hearing, the case will be decided ex parte on the merits. This show cause notice is issued without prejudice to any other action that may be taken against the recipient of the notice or any other person concerned with the act and rules as mentioned in the notice or any other law for the time being force in India. 21. This show cause notice is issued without prejudice to any other action that may be taken against the recipient of the notice or any other person concerned with the act and rules as mentioned in the notice or any other law for the time being force in India. 21. He has also relied on decision of the Supreme Court in Union of India and others vs. Garware Nylons Ltd. Etc. (1996) AIR (SC) 3509 = 1996 (87) E.L.T. 12 (S.C.) wherein it has been held as under :- 15. In our view, the conclusion reached by the High Court is fully in accord with the decisions of this Court and the same is justified in law. The burden of proof is on the taxing authorities to show that the particular case or item in question, is taxable in the manner claimed by them. Mere assertion in that regard is of no avail. It has been held by this Court that there should be material to enter appropriate finding in that regard and the material may be either oral or documentary. It is for the taxing authority to lay evidence in that behalf even before the first adjudicating authority. Especially in the case as this, where the claim of the assessee is borne out by the trade inquiries received by them and also the affidavits filed by persons dealing with the subject matter, a heavy burden lay upon the revenue to disprove the said materials by adducing proper evidence. Unfortunately, no such attempt was made. As stated, the evidence led in this case conclusively goes to show that Nylon Twine manufactured by the assessees has been treated as a kind of Nylon Yarn by the people conversant with the trade. It is commonly considered as Nylon Yarn. Hence, it is to be classified under Item 18 of the Act. The Revenue has failed to establish the contrary. We would do well to remember the guidelines laid down by this Court in Dunlop India Ltd. vs. Union of India AIR (1977) SC 597, in such a situation, wherein it was stated : When an article has, by all standards, a reasonable claim to be classified under an enumerated item in the Tariff Schedule, it will be against the very principle of classification to deny it the parentage and consign it to an orphanage of the residuary clause. 22. 22. We have heard counsel for the parties. 23. Taking into consideration the fact that there is no branch of the company with which the assessee has done his work and merely because subsidiary company has a Branch in India will not amount to branch of company with which the assessee has entered into a contract. The assessee has nothing to do with the subsidiary company. In that view of the matter the contention that Clause (3) of the Export Rules will come into operation, in our considered opinion, the language used wholly or subsidiary company having branch in India will not disentitle the assessee from benefit, therefore, he is not required to make payment of tax and he will be entitled for exemption. 24. The issue is decided in favour of the assessee and against the department. 25. The appeal stands dismissed.