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TMI Blog2016 (2) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... a particular circumstances that squarely fits the activities of the respondent, reference to the meaning of a specific phrase in the general provision is irrelevant. Whether it is ‘technical testing and analysis' or ‘management, maintenance or repair' that is performed on software of the clients of the respondent, it is accepted that expert employees sitting in India have to access the servers/computer networks abroad. The performance of these operations is manifested in the efficient and smooth working of the software in the operations of the client. The location of the client cannot be uncoupled from the performance of the service. And as at least some portion of the service is, thereby, rendered outside the country and hence the rende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cordingly this is also taken up as an appeal filed by the assessee. 3. M/s HSBC Software Development (India) Pvt Ltd undertakes software development and software implementation for the HSBC group companies across the globe. In the course of handling these project, their activities include technical testing and analysis agency' service and maintenance and repair service'. In terms of the Export of Service Rules, 2005 which has, with effect from 15 th March 2005, fine-tuned the ambit of export of services' beyond the hitherto existing concept of receipt of consideration in convertible foreign currency, show cause notices (i) dated 5 th August 2008 for the period from April 2005 to September 2007 20 for demand of ₹ 6,69 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gn clients and are provided by accessing the server/system of the client located outside India through internet and that, to the extent that these services have the effect of making the software functional at the client's end, at least a part of the service is performed outside India. According to the assessee, the reasoning of the adjudicating authority was no less applicable for the period prior to 1 st March 2008 also in relation to management, maintenance or repair' service. 5. Learned Authorized Representative has taken us through the various allegations in the show cause notices and the specific grounds on which appeal has been preferred. Learned Counsel for the respondent cited the decision of the Hon'ble High Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Revenue. The reliance placed by the original authority on the amendment to the statutory provision with effect from 1 st March 2008 viz. second proviso to Rule 3(1)(ii) of Export of Service Rules, 2005 deeming the use of internet and electronic network in relation to certain specified services performed on goods et al located outside to drop the demands for the period after the amendment can only be endorsed. When there is a specific deeming of exports in a particular circumstances that squarely fits the activities of the respondent, reference to the meaning of a specific phrase in the general provision is irrelevant. 7. We now turn to the taxability of management, maintenance or repair' service rendered by the respondent prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xation even before 1 st March 2008. The Hon'ble High Court of Bombay in Commissioner of Service Tax v SGS India Pvt Ltd [2014 (34) STR 554 (Bom)] has clarified the range of activities in rendering such services thus: 18. The Tribunal has found that the clients of the respondents are located abroad. The Tests Reports may have been prepared in India. The tests may have been conducted in India. However, the certificates have been forwarded to the clients of the respondent abroad. It is in such circumstances the Tribunal concluded that the facts in the case of Commissioner of Service Tax Ahmedabad Vs. M/ s.B.A . Research India Limited which is a Tribunal's decision and reported in (2010) 18 STR 439 (Tribunal Ahmedabad) which was fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case, the Tribunal has found that the assessee like the respondent rendered services, but they were consumed abroad. The clients of the respondents used the services of the respondent in inspection/test analysis of the goods which the clients located abroad intended to import from India. In other words, the clients abroad were desirous of confirming the fact as to whether the goods imported complied with requisite specifications and standards. Thus, client of the respondent located abroad engaged the services of the respondent for inspection and testing the goods. The goods were tested by the respondents in India. The goods were available or their samples were drawn for such testing and analysis in India. However, the report of such t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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