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2022 (4) TMI 137 - CESTAT BANGALORERefund of service tax - export of service or not - place of provision of services (POPOS Rules) - contention of the Department is that the services provided by the assessee-appellant in the form of supplying testing data in the electronic form does not amount to export of service in terms of Rule 3 of Place of Provision of Service, 2012 - suppression of facts or not - extended period of limitation - HELD THAT:- The appellant-assessee M/s. MedGenome Labs Limited is a service provider and the MedGenome Inc., USA is the service recipient. The foreign client approaches the appellant for analysis and for identification of genetic patterns and linkages of the specific diseases or ailments based on scientific data, report generated in respect of such diseases/ailments. Report is delivered to foreign client in electronic or web delivery. The report is used by the clients for publishing research articles or manufacture of drugs or formulation after conducting further research and development. As per this fact, the service which is provided by the appellant to their foreign client is analysis report of the samples and not any goods. The collection of samples, analysis thereon is conducted by the appellant in India. It is undisputed fact that the appellant are not receiving any goods from their foreign client but conducting the tests. As per Rule 3 of POPS Rules, the place of provision of service shall be the location of the recipient of service. In the present case, the location of the recipient of service is in abroad. Therefore, the service deemed to have been provided in abroad at the place of service recipient - In the present case, it is beyond any doubt that the service recipient has not physically made available any goods to the appellant being a service provider. The service recipient has no connection in any manner with regard to the collection of samples. It is the appellant who on their own procured the samples from the hospitals and conduct the analytical tests. The appellant have only providing the test reports in electronic or web form to the recipient of service i.e. their foreign client. Therefore, the specific condition under Rule 4 that the service should be provided in respect of goods which must be physically provided by the recipient of service to the provider is not satisfied. The place of provision of service is clearly the location of the recipient of service, which in the present case is country of appellant’s clients. Applying Rule 6A of Service Tax Rules, in the fact of the present case, the provider of service i.e. the appellant is located in India which is the taxable territory, recipient of service i.e. client of the appellant is located outside India. The service is not specified in Section 66 of the Finance Act. As per the discussion made hereinabove, the place of provision of service is clearly outside India. There is no dispute that the payment of such services has been received by the appellant as a service provider in convertible foreign exchange - the appellant have clearly satisfied the conditions required for treating the service as export of service. Therefore, the appellant’s service, being export of service, cannot be chargeable to service tax. Appeal allowed - decided in favor of assessee.
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