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TMI Blog2013 (8) TMI 800X X X X Extracts X X X X X X X X Extracts X X X X ..... y them. The benefit of such export was derived by the recipient located outside India and was utilized outside India - M/s. Em Jay Engineers Versus Commissioner of Central Excise, Mumbai [2010 (5) TMI 221 - CESTAT, MUMBAI] and KSH International Pvt. Ltd. Versus Commissioner of Central Excise, Belapur [2010 (1) TMI 143 - CESTAT, MUMBAI] - assesse was directed to file the declarations as required under Notification No. 12/2005 read with Export of Services Rules, 2005 before the adjudicating authority and the adjudicating authority on receipt of such declaration will process refund claims – Order set aside – Decided in favor of assesse. - ST/483 & 543/2011 - A/10536-10537/2013-WZB/AHD - Dated:- 19-4-2013 - Shri M.V. Ravindran, J. Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod 13-4-06 to 9-2-2007. 4. Ld. Counsel at the outset would submit that the first appellate authority has not addressed the issue of eligibility of the refund of the appellant under the provisions of Notification No. 11/2005 as amended by Notification No. 12/2005. It is his submission that the appellant has received commission for the sales affected by him for the manufacturers situated abroad which can be considered as export of services under the Export of Services Rules, 2005. It is also his submission that the coordinate Bench of this Tribunal in the case of Em Jay Engineers - 2010 (20) S.T.R. 821 and KSH International Pvt. Ltd. - 2010 (18) S.T.R. 404 and Manubhai Co. - 2011 (21) S.T.R. 65 has held that commission in foreign exch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinate Bench of the Tribunal in para 7 has held as under : 7. These facts are not in dispute. The rejection of refund claim was only on the ground that the service provided to their foreign supplier has been delivered outside India but used in India. The period involved is April, 2005 to June, 2007. As this Tribunal has held in the case of KSH International Pvt. Ltd. that the above denial of refund of service tax to the appellant under Rule 5 ibid is contrary to the express provisions of law as clarified in CBEC Circular No. 11/5/2009-S.T., dated 24-2-2009. The Board, in respect of business auxiliary services falling under Rule 3(l)(ii) of the Export Services Rules, 2005, clarified thus; The phrase used outside India is to be inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant in India were received by the foreign companies. These purchase orders were, admittedly, received abroad. They were also, admittedly, acted upon by the foreign companies abroad. In other words, the benefit of the service provided by the appellant accrued to the foreign companies outside India. The condition in question stood fulfilled by the appellant. Accordingly, I find that the facts of this case are identical to the case of KSH International Pvt. Ltd. The reliance placed by the learned DR is not applicable to this case as in those cases the services have been performed in India and they were consumed in India. In this case the service of procuring the purchase orders for the foreign supplier, who is outside India and those procu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a business of a foreign company. This circular is in conformity with the provisions of Rules 3 and 5 of the Export of Services Rules, 2005. The service rendered by the appellant was admittedly one of the business auxiliary services classified under Section 65(105)(zzb) of the Act. The features of this service are also eloquently discernible from the records. As a commission agent, the appellant canvassed purchase orders from prospective Indian buyers for the goods supplied by the foreign companies. These purchase orders were transmitted to the foreign companies either by courier or by electronic means. The foreign companies acted upon these purchase orders and accordingly supplied the goods directly to the Indian buyers, who made the paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of export of business auxiliary service. In the case of ABS India Ltd. also, it was held that exemption was admissible to the assessee in respect of business auxiliary service exported by them. The Tribunal found that the benefit of such export was derived by the recipient located outside India and was utilised outside India. The decision of this Tribunal in the case of B.A. Research India Ltd. is also to the same effect. 11. I find that the adjudicating authority in this case has rejected the refund claims only on the ground that the said refund would not fall under the category of Export of Services Rules, 2005 and hence Rule 5 will not be applicable, is incorrect conclusion as can be seen from the decided case laws as hereinabo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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