2014 (3) TMI 736

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..... The appellant paid service tax in respect of the services provided in India for Indian clients. However, in respect of the services provided to the clients located abroad where the payment was received in convertible foreign exchange they did not pay service tax as this service amounted to 'export of service'. Since the assessee has not paid service tax during the period 2005-06 to 2009-10, proceedings were initiated and as a result of proceedings, an amount of Rs. 61,41,382/- has been demanded as service tax for the services rendered to foreign clients under the provisions of Section 73(1) of the Finance Act, 1994, with interest. Penalties under Sections 76, 77 & 78 of the Finance Act, 1994 have also been imposed. 2. Learned Chartered Acc .....

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..... ort has been sent to the foreign client abroad and has not been delivered in India, the services have been performed in India and delivered in India and therefore, the services cease to be 'export of service'. 4. After considering the submissions made by both sides, we find that the issue falls in a narrow compass and it can be finally decided. Accordingly, requirement of pre-deposit of the dues is waived and the matter is taken up for final hearing. 5. After going through the adjudicating order and the show-cause notice and considering the submissions made by both sides, we find that there is absolutely no evidence to show as to where exactly the report has been delivered or by what mode it has been delivered. Learned A.R. submits that t .....

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..... ginal also. There is not even a finding that delivery was made to the foreign client in India. There is no examination of this aspect at all by the Commissioner. There is nothing in the show-cause notice as to how the report has been delivered. In the case of B.A. Research India Ltd. (supra), while considering this issue, the Tribunal has taken a view that delivery of the report abroad is essential part of the service. The service is not complete unless it is delivered to the client abroad. Since the issue is squarely covered by decision of the Tribunal in the case of B.A. Research India Ltd. (supra) as regards part performance, we consider that in this case also the service has to be treated as partly performed in India and partly performe .....

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