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TMI Blog2017 (7) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... by the respondent from India will only be taken as total turnover - The Revenue cannot apply two yardstick that for the purpose of export turnover by the respondent from India and for the purpose of total turnover, the services deemed to be provide by the respondent therefore it is not permissible. Once the revenue itself has admitted that the service provided from the branch office of overseas is not includible in the export turnover, the same principle has to be applied with regard to total turnover - the value of services provided by the branch offices cannot be added in the total turnover - appeal allowed - decided in favor of assessee. - ST/89105, 89666 to 89668/13-MUM, ST/CO/91085/14-MUM - A/87576-87580/17/STB - Dated:- 30-5-2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the turnover of this services is not included in the export of service that means service was deemed to have not been provided by the appellant from India therefore the same should not be added in the total turnover also. On this basis Ld. Commissioner has rightly not included the value of the services provided by the overseas branches in the total turnover. Therefore there is no error in the order of the Commissioner. Appeal of the Revenue liable to be dismissed. 4. We have carefully considered the submissions made by both sides and perused the record. 5. We find that Ld. Commissioner(Appeals) has given following findings on the issue raised by the Revenue: 8. Rule 5 of OCR allows manufacturer or service provider to utilize the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as independent profit centers and are self sustaining in nature. In respect of services provided by the branches, the appellant has contended that the invoices are raised by the overseas branches directly on the foreign clients and the corresponding payment is also received by the overseas branches from the foreign clients. This method of accounting appears fair and consistent as the turnover of the overseas branches are not included in the export turnover of the Indian entity (Appellant) as well as in the total turnover of the Indian entity, Recently, in the case of M/s. Tech Mahindra Ltd., vide Order dated 07.03.2013 Hon ble CESTAT has held that subsequent to 27.02.2013, when clause (a) of sub-rule (2) of Rule 3 of Export of Service Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as from the denominator in the formula given in Notification No.5/2006-CE (N.T.) and thereby it is clear that the quantum of admissible refund would not very much, irrespective of using the first or the second option. 10. Once it is held by the Ld. Adjudicating Authority that the services provided by the foreign branches of the appellant are not eligible to be treated as export and that part of the turnover has to be excluded from the 'export turnover' for the purpose of the present refund claims, automatically the said turnover has to be also excluded from the 'total turnover' as per the formula given in Notification No.05/2006-CE (NT) dated 14.03.2006, wherein Export Turnover and Total Turnover are defined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices is that the same was not provided from India, if that is so, then the same is not includible in the total turnover of the respondent for the reason that only turnover which is pertains to the activity carried out by the respondent from India will only be taken as total turnover. The Revenue cannot apply two yardstick that for the purpose of export turnover by the respondent from India and for the purpose of total turnover, the services deemed to be provide by the respondent therefore it is not permissible. Once the revenue itself has admitted that the service provided from the branch office of overseas is not includible in the export turnover, the same principle has to be applied with regard to total turnover. Accordingly, value of ser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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