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TMI Blog2021 (2) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... ctly followed the ratio and held that rebate is admissible on the export of service. Appeal dismissed - decided against Revenue. - Service Tax Appeal No. 70466 of 2020 and 70574 of 2020 - FINAL ORDER NO.70001/2021 - Dated:- 11-1-2021 - MR. DILIP GUPTA, PRESIDENT AND MR. P V SUBBA RAO, MEMBER (TECHNICAL) Shri B. K. Jain, Authorised Representative of the Department for the Appellant Shri Atul Gupta, Advocate for the Respondent ORDER Both these appeals arise out of a single impugned order NOI-EXCUS-001-APP-130 131-2021 dated 02.06.2020 by which appeals against Orders-in-Original No. 25-R/AC/NV/ 2018-19 and 26-R/AC/N-V/2018-19, both dated 30.5.2018 passed by the Assistant Commissioner, Central GST Division V, NOIDA were set aside. The assessee-respondent in this case filed two claims seeking rebate of ₹ 1,53,261/- and ₹ 3,60,63,022/- on June 29, 2009 and June 02,2009 respectively under Notification No. 11/2005- ST dated April 19, 2005 read with Section 93A of the Finance Act, 1994 in respect of the Service Tax and Cess paid on all taxable services exported in terms of Rule 3 of the Export of Service Rules, 2005 for the services said to be expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 2(18) of the Customs Act is taking out of India to a place outside India . Therefore, export of service shall mean that the outcome of service should have been consumed outside India. However, in the instant case, the consumer of services to whom services were provided were in India and even the contents of the agreement establish in substance that the ultimate consumption of service was in India. The respondent herein was intermediary to connect the foreign principal to the end users of service who were consumers here in India. (b) As per the CBEC circular No. 111/5/2009-ST dated February 24, 2005, it was clarified as follows: 2. The matter has been examined. Sub-rule (1) of rule 3 of the Export of Services Rule, 2005 categorizes the services into three categories: (i) Category (I) [Rule 3(1)(i)] : For services (such as Architect service, General Insurance service, Construction service, Site Preparation service) that have some nexus with immovable property, it is provided that the provision of such service would be export if they are provided in relation to an immovable property situated outside India. (ii) Category (II) [Rule 3(1)(ii)] : For services (suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Departmental Representative reiterated all the arguments and prayed that the impugned order may be set aside and appeals may be allowed. 7. Per contra, the learned Counsel for the respondent submitted as follows: 1. Two issues to be decided are: (a) Whether the impugned order is legal and correct as it has been passed following the ratio of the decision of the Hon ble CESTAT in respondents own matter which is pending for a decision before Hon ble Supreme Court. (b) Whether the export of service during the relevant period covered the services which were provided to an entity located outside India though the same were utilized by the customers of the foreign entity in India. 2. The impugned order has been passed following the Final order of this Tribunal No. ST/A/50142- 50143/2015-CU(DB) dated January 8, 2015. Merely because an appeal/SLP has been filed by the Revenue against that order, it does not lose the force of being precedent. Reliance is placed on M/s. Involute Engineering Pvt. Ltd. V Commissioner of Central Excise and Service Tax, Meerut I [2020-VIL-551- CESTAT-DEL-ST]. 3. The impugned order is correct even on merits and the respondent has exported serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respondents and the customers of M/s. SEC, whose mobiles are being repaired. The contract is between the respondent and M/s. SEC, Korea. Having sold the mobile phones to its customers, M/s. SEC has obligation to maintain and repair them. They have outsourced this job to the respondent. The respondent provides these services on behalf of M/s. SEC to their customers. The customers do not pay the respondent. M/s. SEC pays them in foreign currency. 10. The argument of Revenue is that although the client is located abroad and services are being paid for in foreign currency, the actual service is being rendered in India. Therefore, this does not qualify as export of service and no rebate is available. 11. On the other hand, the contention of the respondent-assessee is that they have nothing to do with the customers of M/s. SEC. They are rendering services on behalf of M/s. SEC to their customers. Therefore, the consideration is being received from M/s. SEC Korea in foreign currency. This qualifies as export of service and rebate is available. 12. We find that this issue is no longer res integra as this Bench had in respect of the same assessee, in Final Order No. ST/A/50142-5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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