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TMI Blog2016 (8) TMI 589X X X X Extracts X X X X X X X X Extracts X X X X ..... t: - the person availing the service and paying for the service is the ultimate beneficiary of service and since the recipient of service is located outside India, provision of service by the Indian service provider should be construed as export for the purpose of Export of Service Rules, 2005. Refund of cenvat credit allowed – appeal allowed – decided in favor of appellant. - Service Tax Appeal No.ST/52176/2015-EX [SM] - FINAL ORDER NO. 52495/2016 - Dated:- 8-3-2016 - Mr. S.K. Mohanty, Member (Judicial) Present for the Appellant : Shri. R. Muralidharan, Consultant Present for the Respondent: Shri.Vaibhav Bhatnagar, D.R. ORDER This appeal is directed against the impugned order dated 13.03.2015 passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dharan, the ld. Consultant appearing for the appellant submitted that as per the contractual norms, B.A. is the service recipient ad not its customers; that B.A. is responsible for making payment in lieu of the services provided on its behalf and under its instructions; that the payment has been received in convertible foreign exchange. Thus, according to the ld. consultant, since the appellant is fulfilling the conditions of Rule 3(2) of Export of Services Rules, 2005, refund claim of accumulated Cenvat credit is admissible to it. To support his stand that B.A. located in UK is the actual recipient of service, the ld. Consultant has relied on the decision of this Tribunal in the case of Paul Merchants -Vs. - CCE, Chandigarh [2012 - TIOL - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B.A. to provide any service. B.A. has made the payment to the appellant for the services provided to the third party (customers of B.A.) in convertible foreign exchange. Since, service tax is a destination based consumption tax , the test to be applied for ascertaining the actual consumer of service is the person who pays for the service and not the person who benefited from the service. In the present case, it is not in dispute that as per the contractual obligation, B.A. had paid to the appellant for the cost of services rendered to the customers at its behest. Thus, in my considered view, B.A. should be regarded as the recipient of service. 9. In the case of Paul Merchants (supra), this Tribunal in para 21 of the order has explaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a person in India who is not paying for the service though such person may also be a beneficiary of such service . 29. I have difficulty in agreeing with the argument that export of service should be determined, especially in the case of category-III services, by looking at the origin and termination of activities constituting a service because this test is not laid down in the Rules .. 30. The outcome of the above interpretation is that if a person does market promotion for a manufacturer located outside India for selling the goods in India after its import, the goods will be considered to be imported but the marketing services will be considered to be exported. It may prima facie appear to be contradictory. But this is th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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