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TMI Blog2015 (5) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. Cognis Netherland, therefore the condition for treating services as export services i.e. service recipient should be located out side India and commission for such services should be received by the service provider in convertible foreign exchange, have been undisputedly fulfilled. Therefore in my considered view the service provided by the respondent is qualified as export service and consequently, service tax paid on such service is refundable - service is export of service, therefore in case of export refund of service tax does not attract provisions of unjust enrichment. In view of above observations, I do not find any error in the impugned order - Decided against Revenue. - Appeal No. ST/569/12-Mum - Final Order No. A/357/2015-WZB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore me. 2. Shri B. Kumar Iyer, Ld. Superintendent (AR) appearing on behalf of the Revenue submits that the services of market support against the commission falls under Business Auxiliary Services. He submits that the respondent provides services within the India and said services are used for sale of goods in India. Therefore, it is his submission that the services against which the respondent get the commission is used in India and not used in abroad. Therefore, the services provided by the respondent cannot be treated as export services, consequently they are not entitled for the refund. The adjudicating authority has rightly rejected the claim. He submits that Ld. Commissioner's (Appeals) order is not legal and proper and same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia of goods of a foreign seller. In this case, the agent undertakes all activies within India and receives commission for his service from foreign seller in convertible foreign exchange It was further clarified in the above Circular that: for the services that fall under Category III (Rule 3(1)(iii)], the relevant factor is the location of the service receiver and not the palace of performance. In this context, the phrase used outside India' is to be interpreted to mean that the benefit of the service should be accrue outside India. Thus, for Category III Service [Rule 3(I)(iii)], it is possible that export of service may take place even when all the relevant activities take place in India so long as the benefits of these servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered in India-Impugned order set aside-Rule 5 ibid [paras 2.5.1., 5.2. 5.3] I find that the Asst. Commissioner has relied upon the judgment in the case of Microsoft Corporation (I) Pvt. Ltd. 2009 (15) S.T.R. 680 (Tri-Del),. However, I find that in this case, the decision was based on the Supreme Court decision in the case of All India Federation of Tax Practitioners, 2007 (7) S.T.R. 625 (S.C.) wherein the issue involved was that of the taxability and not as to whether a particular provision of service amount to export. In the case of IBM India (pvt.) Ltd. 2010 (20) S.T.R 77 Hon'ble Tribunal considered both the decisions i.e. Hon'ble Supreme Court's decision in the case of All India Federation of Tax Practioners, 2007(7) S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of receipt of service-Amount payable to claimant if related to rebate of duty in case of export of service-Impugned claim arising out of export of service-Refund admissible-Section 11AB of Central Excise Act, 1944 as applicable to service tax vide Section 83 of Finance Act, 1994 [paras 1,4,5] In view of the above decision of the Hon'ble Tribunal, the doctrine of unjust enrichment is also not attracted in the present case. Respectfully following the CBEC Circular dated 24/2/2009 and the Hon'ble Tribunal's decisions in the cases referred to above, I hold that the order-in-original dated 22.11.2010 is not sustainable and thus liable to be set aside. From above findings of the Ld. Commissioner (Appeals), I observe that he has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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