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TMI Blog2018 (8) TMI 1342X X X X Extracts X X X X X X X X Extracts X X X X ..... the procedures and conditions prescribed in the notification followed and fulfilled. The impugned order is not sustainable in law - appeal allowed - decided in favor of appellant. - ST/143/2008-DB - Final Order No. 21103/2018 - Dated:- 2-8-2018 - MR. S.S GARG, JUDICIAL MEMBER And MR. P. ANJANI KUMAR, TECHNICAL MEMBER Shri G. Shivadass, Advocate For the Appellant Shri Madhupsharan, Asst. Commissioner(AR) For the Respondent ORDER Per: S.S GARG The present appeal is directed against the impugned order dt. 18/12/2008 passed by the Commissioner(Appeals) whereby the Commissioner(Appeals) rejected the appeal of the appellant. 2. Briefly the facts of the present case are that the appellants are engaged in promoting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has rejected the rebate claim on the ground that the service is rendered in India and that the appellant has not complied with the conditions in terms of Rule 3 and Rule 5 of Export of Service Rules, 2005. Aggrieved by the said order, the appellant has filed appeal before Commissioner(Appeals) wherein it is submitted inter alia that though they procure orders for a foreign client in India and deliver the same abroad the orders are executed by the foreign client by selling the goods manufactured by them (the foreign clients) to customers in India directly; that part of the service is rendered in India the remaining part of the service is delivered outside India and on this score at least rebate to the extent of service delivered outside Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inance Act, 1994. He further submitted that the appellant paid service tax and claimed rebate of tax so paid in terms of Rule 5 of the Export of Service Rules, 2005 read with Notification No. 11/2005-ST dt. 18/04/2005 and as per the Notification to claim rebate of service tax paid, an assessee shall have exported services in terms of Rule 3 of the Export of Service Rules, 2005 and payment of such taxable service shall have been received in India in convertible foreign exchange. It is his submission that the activity of Business Auxiliary Service is covered under sub-clause (1)(iii) of Rule 3 of Export of Service Rules, 2005. He further submitted that Rule 3(2) of Export of Service Rules, 2005 provides that the payment of such taxable servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon by the appellant, we find that in the present case for a service falling under category of Rule 3 of Export of Service Rules, 2005 following conditions need to be satisfied to qualify as an export of service. a. Service must be provided in relation to business or commerce. b. Service must be provided to a recipient located outside India c. Service is provided from India d. Service is used outside India and e. Payment of such service is received by the service provider in convertible foreign exchange. 7. Further we find that all the above said conditions are fulfilled in the present case. Further we find that the Board circular No. 111/5/2009-ST 24/02/2009 has also clarified the meaning of the phrase used outside In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra 8 has held as under:- 8. Thus, the Export of Services being destination based is subject to Tax. Further, mere fact that the appellant has been promoting and marketing foreign universities within India and then getting prospective students enrolled for various courses in those universities does not mean that services to foreign universities were consumed within India. There is no dispute that service recipients are foreign universities and they are located outside India and payment for such services has been received in foreign currency. From the totality of facts and circumstances, there is no doubt that these services were provided from India and used outside India. Further we find that in this case, the Tribunal has also r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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