9911796707
TMI Blog2017 (1) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... e and payment there against were also received by the branches. Some part of the said amount was repatriated to India, out of the proceed received by the branches for services provided by overseas branches. The appellant claimed refund under Rule 5 of Cenvat Credit Rules, 2002 in respect of service tax paid on the input service used for export services. The adjudicating authority rejected part of the refund on the ground that turn over of the services provided by the appellant branches located in abroad is not qualified for export turnover of the appellant. Being aggrieved by the Order-in-Original, appellant filed appeal before the Commissioner(Appeals). Though Ld. Commissioner(Appeals) upheld the principles laid down by the Original author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and/or in the total turnover, this issue has been decided by this Tribunal in the appellant's case, wherein this tribunal has held under: 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 forei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shall apply to,- (A) the functions performed by the Members of Parliament, Members of State Legislative, Members of Panchayats, Members of Municipalities and Members of other local authorities who receive any consideration in performing the functions of that office as such member; or (B) the duties performed by any person who holds any post in pursuance of the provisions of the Constitution in that capacity; or (C) the duties performed by any person as a Chairperson or a Member or a Director in a body established by the Central Government or State Governments or local authority and who is not deemed as an employee before the commencement of this section. Explanation 2.- For the purposes of this clause, the expression "transaction in m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (1) of section 66C and clause (hhh) of sub-section (2) of section 94 of the Finance Act, 1994 and in supersession of the notification of the Government of India in the Ministry of Finance, Department of Revenue, number 9/2005-ST, dated the 3rd March, 2005 published in the Gazette of India Extraordinary, Part II, Section 3, Sub-Section (i) vide number G.S.R. 151 (E) dated the 3rd March, 2005 and the notification of the Government of India in the Ministry of Finance, Department of Revenue, number 11/2006-ST dated the 19th May, 2006 published in the Gazette of India Extraordinary, Part II, Section 3, Sub-Section (i) vide number G.S.R. 227 (E) dated the 19th May, 2006, except as respects things done or omitted to be done before such supersess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of services.- (1) The provision 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 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 service 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not the assessee. As per Rule 6 A(a) of Service Tax Rules, 1994, for the purpose of 'Export of Service' as discussed above the branches of the assessee who are provider of service and being not located in taxable territory. For this reason also, the service provided by the branches of the assessee are not export of service. From the above legal provisions, I am of the view that the services provided by the branches of the assessee do not fall within the four corners of the term 'Export of Service'. 6. As regard the Revenue's appeal on the ground that value of service provided by the overseas branches should be added in total turnover, I find that as per the above discussion that services provided by the overseas bra ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
