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TMI Blog2019 (11) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... eal No. 11447-11448, 11459-11462, 11476-11479 of 2015 - A/11984-11993/2019 - Dated:- 29-10-2019 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri J.C. Patel, Advocate for the Appellant Shri Sameer Chitkara, Additional Commissioner, AR for the Respondent ORDER The issue involved in the present appeals is whether the services of tele-communication provided by the appellant to the international inbound roamer in Indian territory and payment thereof received from foreign telecommunication service provider, can be considered as export of service and consequently the appellant is entitled for rebate of service tax paid on such services. If at all the appellant is entitled for refund, whether the same needs to be undergone the test of unjust-enrichment. 2. Shri J.C. Patel, Learned Counsel appearing on behalf of the appellants, at the outset submits that the international roamer who use the international telecommunication service are subscribers of foreign based telecommunication service provider. As regards the service, there is contract of the appellant with such foreign based telecom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of all, on merits of the case, we find that this Tribunal in following judgments, dealing with absolutely identical issue, clearly held that service provided to international roamer in India is export of service on the ground that the recipient of service located out of India and the payment is received in convertible foreign exchange, even though actual user of the service is in India :- (i) Vodafone Essar Cellular Limited vs. CCE 2013 (31) STR 738 5 . We have carefully considered the submissions made by both the sides. As the issue is of a recurring nature and involves interpretation of law, we are taking up the appeals for consideration and disposal after waiving the requirement of any pre-deposit. 5.1 We have perused the agreement entered into between the appellant and the foreign telecom service providers. As per the said agreement, the appellant has agreed to provide telecom services to the customer of the foreign telecom service provider while he is in India using the appellant s telecom net work. The consideration for the service rendered is paid by the foreign service provider. There is no contract/agreement between t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o as to avoid contradictions within a legislation. Keeping this principle in view, the meaning of the term used outside India has to be understood in the context of the characteristics of a particular category of service as mentioned in sub-rule (1) of rule 3. For example, under Architect service (a category I service [Rule 3(1)(i)]), even if an Indian architect prepares a design sitting in India for a property located in U.K. and hands it over to the owner of such property having his business and residence in India, it would have to be presumed that service has been used outside India. Similarly, if an Indian event manager (a category II service [Rule 3(1)(ii)]) arranges a seminar for an Indian company in U.K., the service has to be treated have been used outside India because the place of performance is U.K. even though the benefit of such a seminar may flow back to the employee serving the company in India. For the services that fall under Category III [Rule 3(1)(iii)], the relevant factor is the location of the service provider and not the place of performance. In this context, the phrase used outside India is to be interpreted to mean that the benefit of the service accrue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice tax on the international inbound roaming services received by a subscriber of foreign telecom company who visits India. It is not in dispute that the appellant had received consideration from the foreign telecom company for providing such international roaming. In other words, department does not have a case that consideration was received by the appellant from the person who was on visit in India and was receiving services from appellant as a subscriber of foreign telecom company. The international inbound roamer is not a subscriber of the appellants. The department has proceeded with the view that the actual beneficiary of the service is the inbound roamers and the appellant being a service provider for such international roaming facility, the service would fall within the levy of service tax. In fact, even though the actual beneficiary of the service is inbound roamer, there is no agreement by the appellant to provide service to the actual inbound roamer. The agreement to provide service is between the appellant and the foreign telecommunication company. Thus, for the appellant, the service recipient can only be the foreign telecommunication company and not the internatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luding the scope and classification of taxable services, valuation of taxable services, export of services, services received from outside India also fall within the scope of the master circular. Further, in the case of Verizon Communication India Pvt. Ltd. (supra), the Hon ble Delhi High Court had considered the issue whether the master circular supersedes the earlier circulars. The Hon ble High Court had concluded that the circular dated 23-8-2007 makes it explicit that all circulars, instructions and communications issued from time to time stand superseded by the Master Circular. The relevant paragraph is extracted below :- 42. Circular No. 90/1/2007, dated 3rd January, 2007 concerned provision of telephony services to subscribers of international telephone service providers who may be on a visit to India and are availing the inbound roaming services. The said Circular clarified that a telephone connection did not necessarily mean providing a telephone instrument or providing sim card. Even if a number was allocated temporarily to an inbound roamer and used internally it remained a service of a telephone connection. It was clarified that during the period of roami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rizon Communication India Pvt. Ltd. (supra), we find that the master circular supersedes the earlier circulars issued by the Board and therefore the contention of the department that Circular dated 3-1-2007 has to be applied for levy of service tax is not sustainable. 5.6 The Ld. Counsel for appellant has also furnished the order passed by the revisionary authority in their own case vide Order No. 1-5/2018-ST/ASRA/Mumbai, dated 23-1-2018. It is submitted by the Ld. Counsel that the appellant was earlier paying service tax on these services and claiming refund/rebate. In such proceedings, wherein the refund claim was filed by the appellant after paying service tax, the revisionary authority has granted the refund after considering all the circulars as well as the decision in the appellant s own case and the case of Verizon Communication India Pvt. Ltd. (supra). Paragraphs 15 and 16 of the said revisionary order makes it clear that the revisionary authority has taken note of all the circulars of the Board as well as the decisions relied upon by the appellant to grant the refund for the period prior to 1-4-2011. After 1-4-2011, appellant stopped paying the service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y provided in Section 11B. 5.3 However, as regards the time-bar issue, the contention of the Revenue has merits. We notice that the provisions of Section 11B of the Central Excise Act, 1944, which deals with refund of excise duties has been made applicable to Service Tax vide Section 83 of the Finance Act, 1994. This would imply that the time-limit of one year from the date of payment of tax for filing of the refund claim would apply in respect of Service Tax refunds also. Even if it is argued that there is no specific time-limit set out in Notification 11/2005-S.T., it is a settled position in law that though the law is silent on the time-limit applicable, a reasonable time-limit has to be read into the law. The decision of the Hon ble Apex Court in the case of Citadel Fine Pharmaceuticals and the Hon ble Bombay High Court in the case of Everest Flavours Ltd. and other decisions of the Hon ble Apex Court relied upon by the Revenue would support this contention. Therefore, seven refund claims covered by the Order-in-Appeal dated 24-6-2011 appears to attract time-bar and only two claims covered by Order-in-Appeal dated 24-10-2011 and 17-4-2012 is not hit by the t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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