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TMI Blog2019 (6) TMI 1509X X X X Extracts X X X X X X X X Extracts X X X X ..... received in convertible foreign exchange, the same would have to be treated as exported out of India - the services provided by the appellant, qualify as the export of services and accordingly, the service tax is not payable on the commission earned on such services. The issue is decided in the case of M/S GAP INTERNATIONAL SOURCING (INDIA) PVT. LTD. VERSUS CST, DELHI [ 2014 (3) TMI 696 - CESTAT NEW DELHI] where it was held that The performance of such service in India, would not make them received/consumed in India, if beneficiary user/recipient of said service provided in relation to business or commerce, who has paid for these service and has used the service in his business, is located abroad. Appeal allowed - decided in favor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Tribunal. 2. The ld.C.A., appearing on behalf of the appellant, submits that the Appellant Company acts as a Representative of its parent Company, M/s Stollberg, GMBH, Germany, for exclusive representation in the Territory of India by virtue of a Representative Agreement dated 27.03.2001. As per the said Agreement, the appellant shall negotiate contract of sale in the Territory of India on behalf of its parent Company and for this, the appellant shall be paid an agreed commission of every transaction made with M/s Stollberg, GMBH, Germany. The ld.C.A. further submits that they were under the bonafide belief based on interpretation of Rule 3(1)(iii) and Rule 3(2)(b) of the Export of Services Rules, 2005 as amended from time to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relevant paras of the Tribunal s decision in the case of GAP International Sourcing (India) Pvt. Ltd. Vs. CST, Delhi reported in 2015 (37) STR 757 (Tri.-Del.), are reproduced below : 7. In our view the arguments of the department are absurd as the DR has not mentioned as to who is the consumer of the services in India, if the services, in question, provided in India by the appellant have not been used and consumed by their principal in U.S.A. When the appellant identify the vendors for their principal abroad on the basis of the quality of their products, their manufacturing infrastructure, compliance with child labour laws and pollution control norms and also provide the services of inspection of the export consignments, besides ide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich stands decided in favour of the appellant. The relevant paras in the decision of the Bombay High Court in the case of ATE Enterprises Pvt. Ltd. (cited supra), are also reproduced below : 8. The learned counsel appearing for the respondent has relied upon the judgment in the Commissioner of Service Tax, Mumbai-II v. SGS India Pvt. Ltd. [2014 (34) S.T.R. 554 (Bom.)]. It is in that sense that the Tribunal 24. holds that the benefit of the services accrued to the foreign clients outside India. This termed as export of service . In these circumstances, the Tribunal takes a view that if services were rendered to such foreign clients located abroad, then, the act can be termed as export of service . Such an act does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be flawed, the question sought to be raised in the appeal as such stand answered accordingly. The appeal fails and stands dismissed with no order as to costs. 10. Therefore, taking overall view of the above position of law, as there is no case made out by the appellant, so also there is no question of law so stated to be involved in the matter, the appeal is dismissed accordingly. No costs. 6. I find that the services in the instant case have been delivered outside India and used outside India and since payment for the service has been received in convertible foreign exchange, the same would have to be treated as exported out of India. By following the decisions cited above, I find that the services provided by the appellant, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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