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TMI Blog2016 (9) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... ng authority in adjudication sanctioned refund claim of Rs. 24,94,475/- but rejected remaining refund claim amounting to Rs. 9,13,701/- on the ground that the turnover of services provided by the assessee's branches located South Africa and UK is not qualified as export turnover of the assessee. Being aggrieved by the original order, the assessee filed appeal before the Commissioner (Appeals). The Ld. Commissioner (Appeals) though upheld the principle laid down by the original authority that the turnover of the services provided by the branches located in South Africa and UK is not part of the assessee's export turnover, however, interpreting the term 'total turnover' held that the total turnover comes to Rs. 18,87,82,265/-(Rs. 17,73,46,004 towards the export turnover plus Rs. 1,14,36,261/- towards other services). Thus, the turnover of overseas branch offices were not considered in the total turnover. Accordingly, the Ld. Commissioner further sanctioned the refund claim of Rs. 7,68,757/-. However, refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Commissioner by deducting the branch turnover from 'the total turnover' allowed the refund of Rs. 7,68,757/- which is not legal and correct. 4. I have carefully considered the submissions made by both sides and perused the record. 5. The issue to be decided by me are as under: (a) whether, in the facts of the present case, the turnover of branches of assessee's located in South Africa and UK should be treated as export turnover of the assessee. (b) Whether the value of service provided by the overseas branches of the assessee should be included in the 'total turnover' of the assessee. As regard the first issue, as per the fact of the present case the service was provided by the branches of the assessee located in South Africa and UK, the invoices for such services were raised by the respective branches to the foreign based service recipients. The service charges in respect of the service provided by the branches were also received by the branch offices. A part of such receipt was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nomination for which a separate consideration is charged; (ii) any activity carried out, for a consideration, in relation to, or for facilitation of, a transaction in money or actionable claim, including the activity carried out- (a) by a lottery distributor or selling agent on behalf of the State Government, in relation to promotion, marketing, organising, selling of lottery or facilitating in organising lottery of any kind, in any other manner, in accordance with the provisions of the Lotteries (Regulation) Act, 1998; (b) by a foreman of chit fund for conducting or organising a chit in any manner. Explanation 3.- For the purposes of this Chapter,- (a) an unincorporated association or a body of persons, as the case may be, and a member thereof shall be treated as distinct persons; (b) an establishment of a person in the taxable territory and any of his other establishment in a non-taxable territory shall be treated as establishments of distinct persons. Explanation 4.- A person carrying on a business through a branch or agency or representational office in any territory shall be treated as having an establishment in that territory; Place of Provision of Services Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision of any service provided or agreed to be provided shall be treated as export of service when, - (a) The provider of service is located in the taxable territory, (b) The recipient of the service is located outside India, (c) The service is not a service specified in the section 66D of the Act, (d) The place of provision of the service is outside India, (e) The payment for such services has been received by the provider of service in convertible foreign exchange, and (f) The provider of service and recipient of service are not merely establishments of a distinct person in accordance with item (b) of Explanation 3 of clause (44) of section 65B of the Act. (2) Where any service is exported, the Central Government may, by notification, grant rebate of service tax or duty paid on input services or inputs, as the case may be, used in providing such service and the rebate shall be allowed subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by notification.] As per explanation 3(b) of Section 65B(44), if a person is having two establishment one in taxable territory and other in non taxable territory both shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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