2014 (12) TMI 25 - AT - Service Tax

Denial of refund claim - Export of service or not - Appellant appointed by foreign clients to provide repair & maintenance service during warranty period on their behalf to the buyers in India - Business Auxiliary Service - Repair & Maintenance Service - Held that - Appellant is a Distributor/agent of their foreign clients and procuring orders for supply of equipment by the foreign supplier. The appellant has no connection with the buyers in India. In fact he is identifying the buyers for the foreign clients, and the foreign clients are selling equipment to the Indian buyers, on principal to principal basis. We further find that as the equipment are having warranty and the foreign client have to provide certain services to Indian buyers and for providing that service, the appellants are providing service to Indian buyer on behalf of the foreign clients. In these circumstances, the recipient of the service is located outside India who used the services of the appellant to provide service to their buyers. Appellant are providing the service of maintenance of equipment on behalf of their foreign clients to Indian buyers. They have provided the service on behalf of their foreign clients. We further find that during the warranty period, the repairs and maintenance service was to be provided by the foreign supplier and the appellant acted on behalf of the foreign supplier only. It is an admitted fact that the Indian buyer has not paid any amount towards the service provided by the appellant to the appellant during warranty period whereas the appellant who provided the service to Indian buyers has paid the service tax on maintenance service after the warranty period. - Appellant has provided the service of procuring purchase orders for their foreign clients and providing maintenance service to the Indian buyers during the warranty period on behalf of their foreign clients on the instructions of foreign clients are covered by the Rule 3(3) of Export of Taxable Service Rules, 2005. Therefore, the appellant are not required to pay service tax during the impugned period for their activity. Accordingly, they are entitled for refund claim - Decided in favour of assessee.

Summary

Issues Involved:
1. Whether the services provided by the appellant qualify as "Export of Taxable Services" under the Export of Taxable Services Rules, 2005.
2. Entitlement of the appellant to a refund claim of Rs. 50,40,411/- for the service tax paid.

Issue-wise Detailed Analysis:

1. Qualification as "Export of Taxable Services":

The appellant operates as a distributor for foreign clients, providing sales and after-sales services for Hitachi Analytical products. The appellant initially paid service tax but later claimed that their services fall under the Export of Taxable Services Rules, 2005, making them eligible for a refund. The appellant argued that their services are covered under Business Auxiliary Services as per Section 65(105)(zzb) of the Finance Act, 1994, and that as per Notification 9/2005-ST and Rule 3(3)(i), the services provided to recipients located outside India should be considered as export services. The appellant received payments in convertible foreign exchange, meeting the criteria under Notification 13/06-ST dated 19.04.2006.

The Tribunal referenced the case of Paul Merchants Ltd. (2013) where services provided by agents in India on behalf of a foreign entity (Western Union) were considered as export services. The Tribunal emphasized that the services provided by the appellant were on behalf of their foreign clients, and the recipient of the service was located outside India, similar to the Paul Merchants Ltd. case.

Additionally, the Tribunal cited the Bombay High Court's decision in SGS India P. Ltd., where services rendered in India for foreign clients were considered as export services since the benefit of the services accrued to the clients outside India. The Tribunal concluded that the appellant's services, rendered on behalf of foreign clients and involving maintenance during the warranty period, qualify as export services under Rule 3(3) of the Export of Taxable Services Rules, 2005.

2. Entitlement to Refund Claim:

The appellant sought a refund of Rs. 50,40,411/- for the service tax paid, arguing that their services should be considered as export services and thus not subject to service tax. The lower authorities had rejected the refund claim on the grounds that the services were provided in India and did not qualify as export services.

The Tribunal, after considering the submissions and the precedents set by Paul Merchants Ltd. and SGS India P. Ltd., found that the appellant's services were indeed export services. The Tribunal noted that the appellant provided maintenance services during the warranty period on behalf of their foreign clients, and no payment was received from Indian buyers for these services during the warranty period.

Based on these findings, the Tribunal held that the appellant was not required to pay service tax for the period in question and was entitled to the refund claim. Consequently, the impugned order was set aside, and the refund claims filed by the appellant were allowed.

Conclusion:

The Tribunal allowed the appeal, granting the refund claim of Rs. 50,40,411/- to the appellant, and concluded that the services provided by the appellant qualify as export services under the Export of Taxable Services Rules, 2005. The decision was pronounced in court on 24.09.2014.