TMI Blog2014 (11) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... med outside India. In this case, the appellant was providing structure of biochemical compound which was developed in India and a minute quantity was exported and therefore, it was submitted that this Circular is applicable. - prima facie case is in favor of assessee - Stay granted. - C/25211/2013-DB & E/25212/2013-DB - MISC ORDER No. 21474 & 21475/2014 - Dated:- 2-7-2014 - SHRI B.S.V. MURTHY AND SHRI S.K. MOHANTY, JJ. For the Appellant : Mr. B.V.KUMAR, ADV. For the Respondent : Mr. N. Jagdish, A.R. ORDER Per B.S.V. MURTHY; These two appeals are filed against the impugned Order-in-Original No. 51/2012-Adjn (Commr) CE dated 29.10.2012 passed by the Commissioner of Customs Central Excise, Hyderabad-IV Commissionerate. 2. The duties and penalties involved in these appeals are as under :- Customs duty demanded under Section 28 of the Customs Act, 1962 for mis-using Notification No. 52/2003-Cus dated 31.3.2003 along with interest under Section 28AB/28AA, ibid. ₹ 1,15,43,854/- Central Excise duty demanded under Section 11A of the C.E. Act, 1944, for misusing Notification No. 22/2003-C.E. da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also being filed with the Jurisdictional Range officer / Asst. Commissioner of Central Excise that no goods were being exported. 5. Heard both sides. 6. Learned counsel on behalf of the appellants submitted that overseas customers of the appellants depending upon their requirement provide to the appellants the structure of a biochemical compound which is required to be developed by them. After receipt of the structure, the appellants procure the required chemicals/reagents, etc. and develop the process by which the structure of the biochemical compound is prepared. The process of development for preparing such biochemical compound is communicated to the overseas customers and a minute quantity of the sample developed is exported through a courier agency. The appellant did not include the samples so developed and exported in the details of exported samples in the ER-2 Return in view of the fact that the samples were exported by courier only. They have also not filed Shipping Bills. However, they subsequently started filing regular Shipping Bills from March 2011 in respect of one customer. According to the appellants, the purpose of setting up of the unit is for providing Tech ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Not. No. 6/2010 dtd. 27.2.2010) (2) The provision of any taxable service specified in sub-rule (1) shall be treated as export of service when the following conditions are satisfied, namely:- (a).omitted (b) payment for such service is received by the service provider in convertible foreign exchange. The Commissioner s conclusions are available in paragraphs 30 to 32 are relevant and reproduced below : 30. The impugned service i.e. TTA falls under Section 65 (105)(zzh) of the Finance Act, 1994 and during the period up to 31.3.2011, it was covered under 3(1)(ii). It was only by an amendment of the said sub-rule w.e.f. 1.4.2011 (Nofn. 12/2011-ST dated 1.3.2011 w.e.f. 1.4.201) that the said service was deleted and by implication, was transferred to Rule 3 (1) (iii). Consequent to this amendment, the second proviso to the said sub-rule was also amended to delete TTA service (i.e. zzh) from its ambit vide Nofn. 22/2011-ST dated 31.3.2011, effective from 1.4.2011. Accordingly, from 20.12.2006 to 31.3.2011, which is the impugned period, the said service was under the second category, which stipulated that a service in this category can be considered to be e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ils thereof - Activity performed only in India. 4. Have you been registered with service tax cell, if so the details thereof 9. Learned counsel submitted that a careful reading of changes brought out in the Export of Services Rules, 2005 during the period would show that basically, two important conditions are to be satisfied for taxable service to be treated as export of service in terms of the said rules. - The service should be delivered outside India / provided from India and used outside India. - Payment for such service is received by the service provider in convertible foreign exchange. We find these submissions to be correct. Therefore, question arises whether in this case, the appellants can be said to have exported service or not. We find that the Commissioner s conclusion based on the reply as regards physical export is not correct and we find that the submissions made by learned counsel that they did not file Shipping Bills while sending samples is relevant and therefore, they could not have made a submission that they had exported since the question of procedure would arise. Nevertheless, the fact remains that the service was exported. It is not a case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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