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TMI Blog2018 (12) TMI 1753X X X X Extracts X X X X X X X X Extracts X X X X ..... ich consideration is received by an entity from outside India in convertible foreign exchange is nothing but export and, hence, not liable to tax. However, it is the contention of Revenue that after the grouping of the various taxable services according to location of the immovable property, location of performance and location of recipient, rule 3(2) of Export of Service Rules, 2005 thereof mandates not only receipts of consideration in foreign exchange but also a two-fold condition of the service having been provided from India and used outside India. Interpretation of rule 3(2) of Export of Service Rules, 2005 - HELD THAT:- The issue stands settled by the decision of the Hon ble High Court of Bombay in COMMISSIONER OF SERVICE TAX, MUM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Atul Sharma, Assistant Commissioner (AR) And Shri Dilip Shinde, Assistant Commissioner (AR) for the appellant Shri Mehul Jivani, Chartered Accountant for the respondent ORDER PER: C J MATHEW In this appeal of Revenue, facts are that M/s Krohne Marshall Pvt Ltd procures purchase orders for M/s Krohne Messtechnik of Germany and various other companies in the group situated outside the country and considering this to be rendering of business auxiliary service chargeable to tax, under section 65(105)(zb) of Finance Act, 1994, and upon the commission of ₹ 3,10,51,208/- received in 2008-09 and 2009-10, the tax liability of ₹ 33,61,311/- was sought to be recov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenging the merit, is rendered infructuous in the absence of challenge to the finding on limitation. This is undoubtedly so. Nevertheless, it behoves us to consider the grounds of appeal now adduced by Learned Authorised Representative. 4. It is common ground that the activity of the respondent herein is within the ambit of business auxiliary service taxable under section 65(105)(zb) of Finance Act, 1994; the dispute merely pertains to whether the said transactions are exempted as exports. Intuitively, there can be no doubt that an activity for which consideration is received by an entity from outside India in convertible foreign exchange is nothing but export and, hence, not liable to tax. However, it is the contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed off applications for waiver of pre-deposit and the prima facie view therein is, by no mean, a binding precedent enabling the first appellate authority to discard the decision in re Em Jay Engineers. Furthermore, the grounds of appeal have not ignored of a catena of decisions which sustained the view taken by the first appellate authority, viz., Blue Star Ltd v. Commissioner of Central Excise, Bangalore [2008 (11) STR 23 (Tri.-Bang.)], and ABS India Ltd v. Commissioner of Service Tax, Bangalore [2009 (13) STR 65 (Tri.-Bang.)]. Thus, it would appear that an overwhelming majority of decisions are in favour of non-taxability and the only decision relied upon in the grounds of appeal lack binding precedent. The disputation of these dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the clients abroad were desirous of confirming the fact as to whether the goods imported complied with requisite specifications and standards. Thus, client of the respondent located abroad engaged the services of the respondent for inspection and testing the goods. The goods were tested by the respondents in India. The goods were available or their samples were drawn for such testing and analysis in India. However, the report of such tests and analysis was sent abroad. The clients of the respondent were foreign clients, paid the respondent for such services rendered, in foreign convertible currency. It is in that sense that the Tribunal holds that the benefit of the services accrued to the foreign clients outside India. This is termed as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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