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TMI Blog2017 (9) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicability of Section 11B of the CE Act read with Section 83 of the Finance Act, 1994 to the refund application of the Appellant would arise only if the CESTAT came to the conclusion that the services rendered by the Appellant were in fact liable to service tax. If, on the other hand, the CESTAT finds that the services rendered by the Appellant were not amenable to service tax at all, the question of processing the refund application of the appellant with reference to Section 11B of the Act would not arise. This legal position has been made explicit in the context of a claim for refund under the Customs Act, 1962 in the decision of this Court in Hind Agro Industries Limited v. Commissioner of Customs, 2008 (221) E.L.T. 336 (Del.). In that decision the Court has discussed the legal position emerging from the decision of the Supreme Court in Mafatlal Industries v. Union of India, 1997 (89) E.L.T. 247 (S.C.). 4. Consequently, the Court is of the view that the CESTAT ought to have first satisfied itself that the services rendered by the appellant was, on facts, amenable to service tax and different from the other three appeals which were heard together with the appellant's appeal an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, it is pleaded that service provided by them to their foreign clients was "business auxiliary service" covered by Section 65(105)(zzb) and since it has been provided to persons located outside India in relation to their business and payment for the same has been received in convertible foreign exchange, in terms of provisions of Rule 3(l)(iii) read with Rule 3(2) of the Export of Services Rules, 2005, the service so provided has to be treated as exported out of India. It is on this basis that the rebate is being claimed in terms of Rule 5 of the Export of Service Rules. Department's contention, on the other hand, is that the nature of services provided by the appellant to their foreign client is not known, as they have not produced the service agreements and therefore, it is not possible to ascertain as to which service was provided and accordingly whether the service so provided has to be treated as Export of Service in terms of Rule 3(1) read with Rule 3(2) of Export of Services Rules. However, it is seen that during the period of dispute, the appellants had filed ST 3 returns which have also been placed on record and in these returns, the Service provided is mentioned as "Bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ense that in case of export by sea, or air, the vessel/ aircraft in which the goods were loaded, leaves India or in case the export through land customs station, the date on which the goods have crossed the land frontier or in case of export by post parcel, the date on which goods are dispatched by the concerned post office to a place outside India. Applying this analogy, the "relevant date" in case of export of service, would be the date on which the service transaction is complete. Now, in this regard, difference between the event of 'export and a 'Service transaction' has to be kept in mind. Whole 'export' is taking some goods from a place in India to a place outside India, whether on sale or without sale, the service transaction is akin to a sale transaction and just as sale in transfer to property in goods by a person to another person for some consideration and a sale transaction is complete, when the property in goods has been transferred and the consideration for the same has been received, a service transaction is a contract for activity by a person (Service provider) for another person. (Service receiver) for some consideration and a service transaction has to be treated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and Bhutan in terms of Notification 11/2005-ST. The said notification issued under the authority of Rule 5 of Export of Service Rules, 2005 stipulates that there shall be granted rebate of the whole of the service tax and cess paid on all taxable services exported in terms of Rule 3 of the said rules, to any country other than Nepal and Bhutan subjected to conditions limitations and procedures specified therein. Various conditions, limitation and procedures alongwith form for application are prescribed in notification itself. The appellants filed the claim in terms of the above legal positions. The Tribunal recorded in the final order dated 22/10/2014, that the appellants provided taxable service under the category of 'business auxiliary service' and the same has been mentioned in the periodical ST-3 returns filed by them. On merit, it was held that the service tax paid on exported service is available as a rebate to the appellant. It is clear from the facts, as mentioned above, that the appellants rendered taxable service and their claim for rebate of such tax paid, is governed by the provision of Finance Act, 1994, Export of Service Rules, 2005 and accordingly we find that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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