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TMI Blog2018 (4) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... h services received by the service provider in convertible foreign exchange then it will be treated as Export of Services under Rules, 2005. The decision in the case of M/s Sumitomo Corporation India Pvt. Ltd. Versus CST, Delhi (Vice-Versa) [2017 (3) TMI 1366 - CESTAT NEW DELHI] covers the issue, where it was held that the services have been provided to foreign entities as per the agreement entered into and the beneficiary is such foreign entities. The amount as consideration for such services was also paid by the said foreign entities in convertible foreign exchange. Therefore, the services rendered by the appellants are squarely covered by the Export of Service Rules and there is no service tax liability on them. Appeal allowed - decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant seeking to recover service tax amounting to ₹ 15,32,682/- along with interest and penalty. Adjudicating authority vide order dated 21.03.2012 confirmed the service tax demand under section 73(1) of the Finance Act, 1994 along with interest and penalty. Aggrieved by the said order, appellant filed an appeal before the Commissioner (Appeals) who rejected the appeal as the appellant failed to make a pre-deposit as ordered by the Commissioner. Aggrieved by the said order, appellant filed an appeal before the Tribunal and the Tribunal vide its order dated 16.09.2013, after considering the Circular No.111/5/2009- S.T. dated 24.02.2009, remanded the matter back to the Commissioner (Appeals) to decide the appeal on merits without insisti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice provider in convertible foreign exchange. 4.1 He further submitted that all the conditions were fulfilled in the present case. He also referred to the Board's Circular No. 111/5/2009-ST dated 24.02.2009 wherein the clarification on the meaning of the phrase "used outside India" is given as under:- "Sub-rule (1) of Rule 3 of the Export of Services Rules, 2005 categorizes the services into three categories: (iii) Category (III) [Rule 3(1)(iii] : For the remaining services (that would not fall under category 1 or II), which would generally include knowledge or technique based services, which are not linked to an identifiable immovable property or whose location of performance cannot be readily identifiable (such as, Banking and Other F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er considering the submissions of both parties and various judgements relied upon by the appellant cited supra, we find that in the present case the appellant is acting as commission agent of M/s. Aashmore Pvt Ltd, a foreign company who is the recipient of the service. We also find that the Board has also clarified by its Circular dated 24.02.2009 regarding the services used outside India. Further, we find the issue has been considered by the Tribunal in various decisions cited supra wherein it has been held that when the services provided in India and used outside India and payment of such services received by the service provider in convertible foreign exchange then it will be treated as Export of Services under Rules, 2005. Further, we f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in 2014 (36) S.T.R. 766 (Tri.-Del.) and Gap International Sourcing India Pvt. Ltd. reported in 2014-TIOL-465- CESTAT-DEL. = 2015 (37) S.T.R. 757 (Tribunal) held that what constitutes export of service is to be determined strictly in accordance with the Export of Service Rules, 2005. It is the person who requested for the said service and is liable to make payment for the same, who has to be treated as recipient of service and not the person affected by the performance of the service. The destination has to be decided based on place of consumption not the place of performance of service in the case of Category III, Business Auxiliary Service. The appellant/assessee were engaged in promoting market for foreign entities in India. This will a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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