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TMI Blog2015 (10) TMI 2460X X X X Extracts X X X X X X X X Extracts X X X X ..... input services which were, according to the appellant, utilized for the export of service. Subsequently find that there could be an error, they revised the refund claim to Rs. 23,59,331/- and claimed that the services rendered by them as per agreement was to M/s. eBay International, situated in Switzerland. The lower authorities issued a show cause notice dated 17/07/2007 proposing to reject the said refund claim. Appellant contested the said show cause notice on merits and during the personal hearing before the adjudicating authority, they claimed that the services rendered by them to M/s. eBay International, Switzerland was covered under the category of Business Auxiliary Services and they are eligible for the refund of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices which are rendered by them to eBay International, Switzerland are paid in the form of cost plus mark up of 8%. He would also draw our attention to the provisions of Section 65A of the Finance Act, 1994 which provides for classification of the services in different situation and even if provisions of Section 65A are followed the services rendered by the appellant would fall under the category of Business Auxiliary Services. 4. Learned Departmental Representative, on the other hand, draws our attention to the very same agreement entered into by the appellant with eBay International, Switzerland. It is his submission that the relationship between the appellant and eBay International, Switzerland is not very clear as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing services, which are input services from various service providers and paying service tax to such service providers. The appellant had filed refund claims for refund of the input services which has been paid by them to the service providers. 8. We find that the impugned order upholding the rejection of the refund claim is unsustainable for more than one reason. Firstly, the finding that the first appellate authority as regards services rendered by the appellant are reproduced below: "I have gone through scope of service provided by the appellant, definition of Business Auxiliary Service and Business Support Service and provisions relating to classification of services as discussed above. I find that the various services pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service From the above it is dear that the appellant is rendering the service of evaluating prospective customers, processing of orders, customer management, processing of transactions, information and tracking schedule operational assistance for marketing, formulation of customer services and other co-ordination services in India." 10. It can be seen from the above reproduced findings that the appellate authority has come to the conclusion that the services rendered by the appellant were in respect of evaluating prospective customers, processing of orders, etc. We find that CBEC vide circular No. 59/8/2003 dated 20/06/2003 at paragraph 2.1.3 first bullet point has clarified as under: "2.1.3 Certain doubts have been raised in cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services as rendered by the appellant would be covered under Section 65A (2) (c) which indicates that if a services cannot be classified in any of the manner specified in clause (a) or clause (b) it shall be classified under the sub-clause which occurs first among the sub-clauses which equally merits consideration, which in this case is the Business Auxiliary Services. Thirdly, we find that the honble High Court of Karnataka in the case of mPortal (India) Wireless Solutions Pvt. Ltd. (supra) in paragraph 6 has held has under: "6. The assessee is a 100% export oriented unit. The export of software at the relevant point of time was not a taxable service. However, the assessee had paid input tax on various services. According t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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