TMI Blog2023 (11) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... to the client abroad amounts to export of services - The decision to accept the advice rests with the foreign client. The client who is abroad can opt to accept the advice given by appellant or reject the same. In such circumstances, a decision taken by a foreign client to invest in India cannot be said to be the deciding factor whether the advisory services amount to export of service or not. The taxability of an event cannot depend upon a decision taken by a foreign client. The Commissioner (Appeals) has rightly discussed the issue in detail and held that the refund is eligible to the assessee. Though the decision referred by the Commissioner (Appeals) has analysed the issues on the basis of a circular of 2009, we find that the reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and secondly, alleging that there is no export of services. Against such order the assessee filed the appeal before the Commissioner (Appeals). It was contented by the assessee before the Commissioner (Appeals) that the rebate claim is filed within the time limit. With regard to the second ground of rejection the assessee contented that as per Board Circular No.111/5/2009/ST dated 24/2/2009 as well as Circular No.141 dated 1/10/2011 TRU, the services are to be considered as exported. The Commissioner (Appeals) vide order dated 29/11/2012 allowed the appeal filed by the assessee. Thus ordered the sanction of the balance rebate of Rs.39,60,567/-. 3. Aggrieved by the sanction of refund, the department has now filed Appeal No.ST/40569/2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Board is binding on the department and therefore the order dated 29.11.2012 passed by the Commissioner (Appeals) sanctioning the refund is erroneous. Further, the Commissioner (Appeals) though discussed about the Circular dated 24/2/2009 has not rendered any finding in regard to the circular dated 13/5/2011. It is urged by the learned AR that the decisions in the case of Manish Agarwal 2012 (27) STR 155 and EM Jay Engineers 2010 (20) STR 821 relied by the Commissioner (Appeals) has referred to the circulars of 2009 and therefore not applicable. The learned AR prayed that the department appeal may be allowed and assessee appeal may be dismissed. 6. The learned consultant Shri Rajaram appeared and argued for the assessee. It is subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of services. We have to say that the decision to accept the advice rests with the foreign client. The client who is abroad can opt to accept the advice given by appellant or reject the same. In such circumstances, a decision taken by a foreign client to invest in India cannot be said to be the deciding factor whether the advisory services amount to export of service or not. In other words, taxability of an event cannot depend upon a decision taken by a foreign client. In our view, the Commissioner (Appeals) has rightly discussed the issue in detail and held that the refund is eligible to the assessee. Though the decision referred by the Commissioner (Appeals) has analysed the issues on the basis of a circular of 2009, we find that the reas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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