2025 (1) TMI 1212 - AT - Service Tax

Eligibility for a rebate on the provision of investment advisory services classified under banking and other financial services as per Section 65(105)(zm) of the Finance Act 1994 - rebate under N/N. 11/2005-ST dated 19.04.2005 - HELD THAT - It is noted that sub-rule (2) of Rule 3 of Export of Services Rules has laid down a condition that unless a payment is received in convertible foreign exchange the service is not treated as export. Further there is one more condition of provision of export of service and that is specified for various services in various clauses of sub-rule (1) of Rule 3 ibid. For the service provided by the appellant which is classifiable under Section 65(105)(zm) clause (c) of clause (iii) of sub-rule (1) of Rule 3 of Export of Services Rules 2005 is applicable and according to the said provision the export of taxable service is on provision of such service to a recipient located outside India. In the present case the invoice is raised on 29.06.2012 which is the date prior to the date on which Notification No. 11/2005-ST was rescinded. The order passed by the original authority allowing refund was in accordance with law - Appeal allowed.

Summary

The core legal issue presented and considered in this judgment revolves around the eligibility for a rebate on the provision of investment advisory services classified under banking and other financial services as per Section 65(105)(zm) of the Finance Act, 1994. The appellant provided these services to a company in the United Kingdom from April 2012 to June 2012 and sought a rebate under Notification No. 11/2005-ST dated 19.04.2005. The key question was whether the rebate claim was valid given the timing of the service provision, the receipt of payment, and the applicability of the rescinded notification.

The relevant legal framework includes the Export of Services Rules, 2005, specifically Rule 3, which outlines the conditions under which services can be classified as exports eligible for rebates. Rule 3(1)(iii)(c) states that the export of taxable services occurs when services are provided to a recipient located outside India. Rule 3(2) requires that export proceeds be received in convertible foreign exchange for the service to be considered an export.

The Tribunal's interpretation and reasoning focused on the timing of the service provision and the receipt of payment in foreign exchange. The appellant argued that both conditions for rebate eligibility were satisfied: the service was provided to a foreign recipient, and payment was received in convertible foreign exchange. The appellant contended that the date of foreign exchange receipt should not determine the service provision date, relying on precedent from a similar case (Gartner India Research and Advisory Services P. Ltd. vs. Commissioner of CGST, Mumbai East).

The Tribunal examined the evidence, including the invoice dated 29.06.2012, which was prior to the rescission of Notification No. 11/2005-ST. The Tribunal found that the original authority's decision to sanction the rebate was consistent with the applicable legal framework, as the service provision date fell within the notification's effective period, and the payment condition was met.

Competing arguments centered on the interpretation of Rule 3(2) of the Export of Services Rules. The respondent argued that the provision of service should be linked to the date of payment receipt, while the appellant maintained that the service provision date was independent of payment receipt, provided the payment was eventually received in convertible foreign exchange.

The Tribunal concluded that the original authority's order allowing the rebate was lawful, as the service provision date was within the notification's effective period, and the payment condition was satisfied. Consequently, the Tribunal set aside the Commissioner (Appeals)'s order and restored the original authority's decision.

Significant holdings from the judgment include the Tribunal's emphasis on the timing of service provision and payment receipt as separate considerations for rebate eligibility. The Tribunal reinforced the principle that the service provision date, rather than the payment receipt date, determines eligibility under the rescinded notification, provided payment in convertible foreign exchange is eventually received.

The final determination was that the appeal was allowed, and the original authority's order sanctioning the rebate was reinstated.