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2018 (11) TMI 759 - CESTAT NEW DELHIClassification of service - Export of services or not? - income from commission being received due to assisting/helping foreign company located outside India i.e. Hunkeler AG in procuring orders from India and facilitating sale of imported goods to customers in India - whether the services are export of service or in the nature of Business Support service? Held that:- There is no dispute that the service recipient of the appellant is Hunkeler AG, a Switzerland Company based out of India. There is also no dispute that the charges for services so provided are received by the appellant in convertible foreign exchange - the services provided falls in the definition of export of services. This Tribunal in M/s. Paul Merchants vs. CCE, Chandigarh [2012 (12) TMI 424 - CESTAT, DELHI (LB)] has held that what constitutes export of service is to be determined strictly with respect to the provisions of Export of Service Rules, 2005. It is the person who requested for the service and is liable to make the payment for the same, who has to be treated as recipient of service and not the person affected by the performance of the service. Thus, when the person on whose instruction the services in questions have been provided and is located abroad, the destination of services in question has to be treated as abroad. Thus, the services provided by the appellant to Hunkeler AG is irrespective it was performed on the customers based in India but it is the export of service. In the given circumstances, the findings of both the adjudicating authority below to this aspect are held to be wrong and therefore are set aside. Classification of service being received by the appellant from PBAP - Held that:- The services received by the appellant are not merely customer oriented that is not merely for evaluation of customers/ tele- marketing/ customer relationship etc. but are in addition of management of the appellants organisation not only in the form of support, but also in the form of advisory. Even to the extent of strategising merger and acquisition, which is resorted to enhance operating efficiencies and to capture synergies in one or more functional areas as marketing, manufacturing R & D or Finance - These services are beyond the scope of business support services and thus can rightly be classified under management consultancy service. Time limitation - Held that:- It is an admitted fact that the appellant had been discharging its liability as far as the services being export of service and the services being management consultant service are concerned. The ST-3 returns have regularly been filed. Hence there is no case of evasion of duty thus the allegation of mis-representation or suppression of facts as is alleged is not sustainable. Appeal allowed - decided in favor of appellant.
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