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2023 (5) TMI 562 - CESTAT HYDERABADEOU - Import of Capital Goods without payment of Customs Duty in terms of Notification No. 52/2003-CUS - procurement of consumables indigeneously in terms of Central Excise Notification No. 22/2003-CE. - export of services - first proviso Rule 3(ii) of Exports Services Rule, 2005 - Time Limitation - HELD THAT:- As can be seen from the Para 6 of the Show Cause Notice, the allegation of the Department at the Show Cause Notice stage is on the count that services being rendered by the Appellants were not fully rendered within India. The Hon’ble CESTAT, Ahmadabad in the case of COMMISSIONER OF SERVICE TAX VERSUS BA RESEARCH INDIA LTD. [2009 (11) TMI 213 - CESTAT, AHMEDABAD] was seized of the very same issue and it has held that delivery of the report is an essential part of their service and the service is not complete till they deliver the report. The report is delivered outside India and the same is used outside India. These facts also fortify the views taken hereinabove that the service provided by the appellants was export of service and I am inclined to them such taxable service as export of service and therefore not taxable. The issue of Second Proviso to Rule 3 (ii) was not brought out in the Show Cause Notice or in the Order-in- Original. However without going into the merits as to whether the goods were situated outside at that point of time or not and whether even the sample brought into India for testing can be considered as the goods being present in India, the issue decided only on the ground that no such allegation was made in the Show Cause Notice. Appeal allowed.
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