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2014 (6) TMI 354 - CESTAT NEW DELHIDenial of rebate claim - notification no.11/2005-ST dated 19.4.2005 - Export of business auxiliary services - Held that:- In both the cases, the rebate claims under notification no.11/2005-ST issued under Rule 5 of the Export of Service Rule, 2005 have been rejected, In both the cases, though in course of proceedings before the Commissioner (Appeals) the agreements of the appellants with their foreign clients had been produced, the finding of the Commissioner (Appeals) is that the service rendered cannot be classified as Business Auxiliary Service and also the same cannot be treated as Export of Service. Ongoing through the agreements of the appellants with their foreign clients, M/s. Secheron SA, Switzerland and M/s. Gimota AG, Switzerland, we find that function of the appellant is promoting the sales of their client s products in India, conducting market survey and, if required, conducting inquiries with regard to solvency and reliability of the clients and besides this, they are also required to provide after-sale warranty service in testing, etc. on behalf of their foreign clients to the buyers in India. These services are covered by the definition of Business Auxiliary Service as given in Section 65(105)(zzb) read with Section 65(19). Services provided by the Appellants have to be treated as export of service, the appellant would be entitled for rebate of service tax paid on the same in terms of notification no.11/2005-ST issued under Rule 5 of the Export of Service Rules, if the procedure prescribed in this notification has been followed and the conditions prescribed therein are fulfilled. The Assistant Commissioner has not gone into this aspect. In view of this, the impugned orders are set aside and the matters are remanded to the original adjudicating authority for examining the rebate claims in terms of the notification no.11/2005-ST issued under Rule 5 of the Export of Service Rules. - Decided in favour of assessee.
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