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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 ..... repair and maintenance services and renting of immovable property services. During the period from April, 2010 to September, 2010; April, 2011 to September 2011 and October 2010 to March, 2011, they provided taxable services to their foreign clients, in respect of which payments were received in convertible foreign exchange. During that period, they paid the Service Tax in respect of these transactions. However, subsequently in accordance with the Rule 5 of Export of Services Rules, 2005 read with notification No. 11/05-ST dated 19-4-2005, they filed the rebate claims on the ground that the services provided to their foreign clients are Business Auxiliary services and the transactions constitute export of services in accordance with Rule 3( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner (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 services provided to their off-shore clients in foreign exchange, the appellant paid the Service Tax; that since the appellants, have provided business auxiliary services, covered by Section 65(105)(zzb) to their foreign clients, these transactions have to be treated as export of services in terms of Export of Servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time barred, is not correct and that in view of the above, the impugned orders are not sustainable. 5. Shri Govind Dixit, learned DR, defended the impugned order by reiterating the findings of Commissioner (Appeals) and pleaded that since in none of these cases, the appellants had produced their Service Tax agreements with their foreign clients, the nature of services provided is not ascertainable and; therefore, it can not be ascertained as to which service was provided by them to their foreign clients and whether the provision . of these services can be treated as export of 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treated as Export of Service in terms of Rule 3(1) read with Rule 3(2) of Export of Services Rules. However, it is seen that during the period of dispute, the appellants had filed ST 3 returns which have also been placed on record and in these returns, the Service provided is mentioned as "Business Auxiliary Service". Once the Service Tax has been collected by the department from the appellants by treating their services as business auxiliary service at the time of considering the claim for rebate of the Service Tax so paid, the department cannot question the classification of the services. Therefore, the denial of rebate on the ground that in absence of service agreements, the nature and classification of services provided by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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. We find that the same view has been taken by the Tribunal in the case of CCE, Pune-I v. Eaton Industries P. Ltd. referred in 2011-TIOL-166-CESTAT-Mum = 2011 (22) S.T.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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