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2015 (9) TMI 783

Head Note:
Refund - Export of services - re-classification of services - engineering consultancy services, business auxiliary services, repair and maintenance services and renting of immovable property services were provided to foreign clients - Scope of Rule 5 of Export of Services Rules, 2005 read with notification No. 11/05-ST dated 19-4-2005 - Held that:- Once the Service Tax has been collected by the department from the appellants by treating their services as business auxiliary service at the time of considering the claim for rebate of the Service Tax so paid, the department cannot question the classification of the services. Therefore, the denial of rebate on the ground that in absence of service agreements, the nature and classification of services provided by the appellants, is not ascertainable, is not sustainable. However, for quantification of export rebate, the matter would have to be remanded, as the rebate would be admissible only of the Service Tax paid on the amount received by the Appellants for Services provided by them to their foreign clients. - Decided in favor of assessee.

Period of limitation for claiming refund / rebate - Held that:- In case of export of Service, the services provider is in India and the services receiver is outside India. Therefore, in our view, a service transaction would be complete in case of export of service, when the service has been provided to the off-shore client and the payment for the service has been received and accordingly, the date on which the payment has been received has to be treated as the “relevant date” for the purpose of counting limitation period. Moreover, the terms of Rule 3(2) of the Export of Services Rules, 2005, the provision : of Services specified in Rule 3(1) shall be treated as export only when payment for such services has been received by the service provider in convertible foreign exchange and on this basis also, a transaction of service export is to be treated as complete only when the service has been provided and payment for the same has been received in convertible foreign exchange. - Decided in favor of assessee.

 


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