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TMI Blog2019 (2) TMI 1253X X X X Extracts X X X X X X X X Extracts X X X X ..... m the above it is apparent that the training provided by the appellants is not provided to the employees of M/s Duke CE USA but to the clients of M/s Duke CE USA on their behalf. In these circumstances, the service provided by them would be properly classifiable as BAS as the expression “provision of service on behalf of the client” specifically covered under Clause (vi) of the definition of BAS. It is apparent that the appellants are providing the training to the clients of Duke CE USA on behalf of the Duke CE USA and receiving remuneration in convertible foreign exchange. Thus, the service provided by the appellant is rightly classifiable as BAS. Appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... India while some were rendered outside India. He, however, pointed out that since the service provided by them was a service on behalf of their client Duke CE USA to third parties, the service qualified as BAS falling under clause (zzzb) of clause 105 of Section 65 of the Finance Act, 1994. He pointed out that BAS fell under the clause (iii) of Rule 3(1) of the Export of Service Rules, 2005. He pointed out that for the service falling under the category of BAS, if the recipient of service is located outside India, the service would qualify as export of service in terms of Export of Service Rules 2005. He pointed out that in the instant case the service recipient namely, Duke CE USA, is located outside India and therefore, the service of BA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services specified as performance basis services in sub-clauses (i) & (ii) of rule 3 of Export of Services Rules, 2005. Nor is it excluded from sub-clause (iii) which deals with providing services in relation to business or commerce to a recipient located outside India. The custodial services provided, would be clearly covered by sub-clause (iii) of Rule 3 of the Export of Services Rules, 2005 and the respondent would be entitled to its benefit. 10. in fact, the Central Board of Excise & Customs on 24th February, 2009 has issued a clarificatory Circular No. 111/5/2009, clarifying that in respect of services following under category/clause (c) above i.e. Rule 3(1)(iii) of the Export of Service Rules, 2005, the relevant factor is the locatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, located outside India, the condition of use of outside India is clear and therefore, the transactions clearly amount to export of service which is not liable to tax in India. We also note that the respondent herein undertakes only exports of services and is not rendering any services in India. Therefore, all the input services on which he has taken the credit is in relation to the exports made by him. Consequently the appellant would be eligible for refund of the input service tax paid under Rule 5 of the Cenvat Credit Rules, 2004. The only objection raised by the Revenue is that the respect of some service, the invoices are not in the name of the respondent but in the names of parent company. It is not the contention of the Revenue, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appellants are providing the training to the clients of Duke CE USA on behalf of the Duke CE USA and receiving remuneration in convertible foreign exchange. Thus, the service provided by the appellant is rightly classifiable as BAS. BAS is covered by rule 3(1)(iii) of the Export of Service Rules 2005, where a service constitute export when a service recipient is located outside India. In the instant case the service recipient namely, Duke CE USA, is located outside India. The appellants are providing service of training to the clients of Duke CE USA thus in terms of the Export of Service Rules the service provided by the appellant would constitute export of service. 5. As a result the demand of service tax does not survive. The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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