9911796707
TMI Blog2011 (9) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Rules, 2005. The learned Appellate Authority was of the view that the appellant did not fulfill the condition of either of Rule 3(ii)(i)(a) or Rule 3(ii)(i)(b) of Export Service Rules, 2005 for which it cannot be held to have exported taxable service for which it is liable to service tax. 2. Show Cause Notice by para 2 thereof brought out the fact that the appellant made a refund claim on the ground that it had exported taxable service to M/s. General Motor Corporation, USA. The service so exported was liable to service tax in India under the category of business auxiliary service under Section 65(105)(zzb) of Finance Act, 1994. There is no dispute about the levy of tax in India if such service is provided in India but the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilways discharged liability of the foreign exporter i.e. M/s. General Motor Corporation towards commission payable to the Appellant by the later. This resulted in no movement of foreign exchange from India to the extent of commission payable to the appellant and foreign exchange was conserved to the extent of commission paid to the Appellant. 5. While the matter stood thus, learned Advocate appearing on behalf of the appellant submits that there is no dispute about the consideration paid to the present appellant for the taxable service provided to the foreign exporter. The commission payable is exhibited by para 4(iii) of the Appellate order. The foreign exporter having no office in India, arranged to compensate the appellant by India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zzp) of clause (105) of section 65 of the Act, such taxable services as are provided in relation to an immoveable property which is situated outside India, (2) in relation to taxable services specified in sub-clauses (a), (f), (h), (i), (j), (l), (m), (n), (o), (s), (t), (u), (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), (zzs), (zzt), (zzv), (zzw), (zzx) and (zzy) of clause (105) of Section 65 of the Act, such services as are performed outside India : Provided that if such a taxable service is partly performed outside India, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. Explanation - For the purposes of this rule "India" includes the designated areas in the Continental Shelf and Exclusive Economic Zone of India as declared by the notifications of the Government of India in the Ministry of External Affairs Nos. S.O.429(E), dated 18th July, 1986 and S.O. 643(E), dated 19th Sept 2006". 5. The service provided by the Appellant to GMC is taxable under Section 65(105)(zzb) of the Finance Act, 1994 and this service is covered by su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eiver and in view of the facts of the case, the Tribunal held that the service has been provided and received in India and it was not a case of export of service. Therefore, this judgment of the Tribunal is not applicable to the facts of this case. We, therefore, held that the service provided by the Appellant to GMC, USA has to be treated as 'export of service' under Rule 3(3) of the Export of Service Rules and therefore, the terms of the provisions of Rule 5 ibid, the Appellants were eligible for refund of the service tax paid on such service exported to GMC, USA. 8. From the aforesaid discussion, we note that instead of foreign exchange going out of India, there is conservation of foreign exchange in India to the extent of commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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