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TMI Blog2015 (9) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... r foreign clients. - Decided in favor of assessee. Period of limitation for claiming refund / rebate - Held that:- In case of export of Service, the services provider is in India and the services receiver is outside India. Therefore, in our view, a service transaction would be complete in case of export of service, when the service has been provided to the off-shore client and the payment for the service has been received and accordingly, the date on which the payment has been received has to be treated as the “relevant date” for the purpose of counting limitation period. Moreover, the terms of Rule 3(2) of the Export of Services Rules, 2005, the provision : of Services specified in Rule 3(1) shall be treated as export only when payment for such services has been received by the service provider in convertible foreign exchange and on this basis also, a transaction of service export is to be treated as complete only when the service has been provided and payment for the same has been received in convertible foreign exchange. - Decided in favor of assessee. - ST/56798-56800, 56808-56809/2013-CU(DB) - Final Order Nos. ST/A/54174-54178/2014-CU(DB) - Dated:- 22-10-2014 - Ms. Arch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the rebate claims on the ground that since the appellants have not provided the service agreements and for this reason, the nature of service provided to the off shore clients is not known, it is not possible to determine as to whether the service has been exported out of India in terms of Export of Services Rules, 2005. Two rebate claims covered by appeal No. ST 56798/13 and 56800/13 were also rejected on the ground of time bar, as according to the department, the same has been submitted far beyond the limitation period of one year prescribed under Section 11B of the Central Excise Act, 1944. 1.2 On appeals, being filed before Commissioner (Appeals) against these orders of the Deputy Commissioner, the same were dismissed. Against these orders of the Commissioner (Appeals), these five appeals have been filed. 2. Heard both sides. 3. Shri B.K. Singh, advocate, the learned counsel for the appellants pleaded that services provided by the appellant to their foreign clients were procuring sales orders and marketing and promotion of the goods of their foreign clients for which they received commission in foreign exchange; that at the time of receipt of the payments for the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f service in terms of Export of Services Rules, 2005 and that the nature of Service provided is not ascertainable from the ST-3 returns. He also pleaded that two rebate claims have also been correctly rejected as time barred, as the same had been filed long after expiry of one year from the date of payment of Service Tax. He, therefore, pleaded that there is no infirmity in the impugned order. 6. We have considered the submissions made by both the sides and perused the records. According to the appellants, they had provided the business auxiliary services by procuring the orders and marketing and sales promotion of the products of their foreign clients for which they had received the commission in convertible foreign exchange and on this basis, it is pleaded that service provided by them to their foreign clients was business auxiliary service covered by Section 65(105)(zzb) and since it has been provided to persons located outside India in relation to their business and payment for the same has been received in convertible foreign exchange, in terms of provisions of Rule 3(l)(iii) read with Rule 3(2) of the Export of Services Rules, 2005, the service so provided has to be trea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt date is defined in explanation B of Section 11B of the Act. Clause (a) of Explanation (B) defines the relevant date in case of goods exported out of India. According to Explanation B(a), the relevant date in case of goods exported out of India is - (i) the date on which the ship or aircraft in which the goods are loaded/shipped, leaves India, in case of export of goods by sea or air; (ii) the date on which the goods cross the frontier in case of export by land, and (iii) the date of despatch of goods by post office concerned, to a place outside India, in case of export by post. Thus, in terms of the above definition, in respect of goods exported out of India, relevant date is when the export of the goods is complete, in the sense that in case of export by sea, or air, the vessel/ aircraft in which the goods were loaded, leaves India or in case the export through land customs station, the date on which the goods have crossed the land frontier or in case of export by post parcel, the date on which goods are dispatched by the concerned post office to a place outside India. Applying this analogy, the relevant date in case of export of service, would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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