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TMI Blog2023 (5) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... ICE TAX VERSUS BA RESEARCH INDIA LTD. [ 2009 (11) TMI 213 - CESTAT, AHMEDABAD] was seized of the very same issue and it has held that delivery of the report is an essential part of their service and the service is not complete till they deliver the report. The report is delivered outside India and the same is used outside India. These facts also fortify the views taken hereinabove that the service provided by the appellants was export of service and I am inclined to them such taxable service as export of service and therefore not taxable. The issue of Second Proviso to Rule 3 (ii) was not brought out in the Show Cause Notice or in the Order-in- Original. However without going into the merits as to whether the goods were situated outsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CE. These Notifications specify that the Capital Goods can be imported without payment of customs duty and goods can be procured indigeniously without payment of Excise Duty. These goods have to be utilised by the EOU so as to provide services which are ultimately exported out of India. The Department issued Show Cause Notice No. O.R.No.177/2010-Adjn.(Commr.)CE dated 07.12.2010, alleging as under: It appears from the above legal provisions, that the Technical Testing and Analysis Service falls under List-II of the Export of Service Rules, 2005. The services mentioned under this category qualify for export of service only if part of the service is rendered outside India. However, in the instant case, the entire service is being rendered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as export of services. The Learned Advocate also placed the reliance on the case law of Commissioner of Service Tax, Mumbai Vs SGS India Private Limited [2014 (5) TMI 105 BOMBAY HIGH COURT] wherein similar issue was under consideration before the Hon ble High Court and after noting that earlier decisions were given by the Tribunal in the case of KSH International Pvt Ltd., Vs Commissioner of Central Excise, Belapur [2010 (1) TMI 143 CESTAT, MUMBAI] and in the case of BA Research India Ltd., the Hon ble High Court held that since Service Tax is a value added Tax which is a consumption based Tax, mere delivery of the reports itself would be sufficient to hold that service has been exported. He further pleads that the demand is also hit by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proviso of Rule 3(ii), nor this was discussed even in the Order-in- Original. Therefore, the Department taking this stand at this juncture amounts to traversing beyond the scope of Show Cause Notice. For the Returns filed by them under ST-3 and Service Tax paid by them in respect of export of services, he draws attention to Rule 4 of Service Tax Rules wherein it is stated that the service provider may export services without payment of Service Tax. The word may would mean that he has option either to export the services without payment of Service Tax or pay the Service Tax and claim the Rebate on account of inputs and services used in the provision of such services. Further, in the ST-3 returns there is no scope to show export of service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir service and the service is not complete till they deliver the report. The report is delivered outside India and the same is used outside India. These facts also fortify the views taken hereinabove that the service provided by the appellants was export of service and I am inclined to them such taxable service as export of service and therefore not taxable. [emphasis supplied] The Hon ble High Court of Bombay in that case of Commissioner of Service Tax, Mumbai Vs SGS India Private Limited [2014 (5) TMI 105 BOMBAY HIGH COURT], has gone through the same issue and has held as under: 24. In the present case, the Tribunal has found that the assessee like the respondent rendered services, but they were consumed abroad. The clients o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken the view that service tax is a value added tax which in turn is destination based consumption tax in the sense that it taxes non commerical activities and is not a charge on the business, but on the consumer, then, it is leviable only on services provided within the country. It is this finding and conclusion of the Hon'ble Supreme Court which has been applied by the Tribunal in the facts and circumstances of the present case.[emphasis supplied] 7. We find that both the above decisions fully cover the issue on hand. We also agree with the Learned Counsel that issue of Second Proviso to Rule 3 (ii) was not brought out in the Show Cause Notice or in the Order-in- Original. However without going into the merits as to whether the go ..... X X X X Extracts X X X X X X X X Extracts X X X X
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