TMI Blog2011 (2) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... by foreign importers who imported certain goods from Indian exporters. The foreign parties wanted the appellant to inspect/test/analyse samples of the goods in India and provide certificates to enable them to ascertain the quality of the goods before importation. Accordingly, the appellant inspected/tested/analyzed samples of the goods and sent certificates to their foreign clients and the latter, having been satisfied of the import-worthiness of the goods, cleared the same, which were exported by the Indian exporters. The consideration for the service provided by he appellant was paid in convertible foreign exchange. The department demanded service tax on this consideration paid by the foreign parties to the appellant. In adjudication of the relevant show-cause notice, the learned Commissioner of Service Tax confirmed this demand amounting to Rs 82,16,553/- against the appellant for the aforesaid period (1.7.2003 to 19.11.2003), demanded interest thereon and imposed penalties. 2. In the present appeal filed against the Commissioner s order, it is the case of the appellant that the service rendered by them was utilized by their clients abroad and, therefore, the transaction invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief to the service sector which had been encountering difficulties on account of having to pay service tax on export of services, it (Notification No. 21/2003-ST) should be held to be clarificatory in nature and should be given retrospective effect. In this context, the learned counsel has also claimed support from the Supreme Court s judgment in W.P.I.L. Ltd v. Commissioner 2005 (181) ELT 359, wherein the apex court considered Notification No. 46/94-CE dated 1.3.1994 which granted exemption in respect of power-driven pumps and also considered Notification No. 95/94-CE dated 25.4.1994 which granted exemption to parts of such pumps and took the view that the later notification was clarificatory and hence retrospective. 4. The learned counsel further submits that the issue involved in this case can be best settled in view of the Tribunal s decision in Commissioner v. B.A. Research India Ltd. 2010 (18) STR 404 (Tri-Ahd.), wherein the Bench considered taxability of "technical testing and analysis service" provided by the assessee to clients located outside India and took the view that the service became complete when the test report was delivered to the Overseas client. The Bench, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within India by inspecting, testing and analyzing samples of the goods in India. The learned SDR means to say that there was no export of service in this case. It is his further submission that export of services was exempted from payment of service tax for the first time with the promulgation of Export of Services Rules, 2005 and, therefore, the appellant cannot claim such exemption for any prior period. The learned SDR further submits that none of the Notifications cited by the learned counsel referred to export of services. Therefore, according to him, the issuance or withdrawal of any such notification would be of no consequence. In any case, admittedly, there was no exemption notification in force during the period of dispute granting exemption from payment of service tax on any taxable service rendered against payment of convertible foreign exchange and, therefore, the appellant has to pay service tax for such period. 7. We have given careful consideration to the submissions. It is not in dispute that Technical Inspection and Certification Service and Technical Testing and Analysis Service were taxable services during the period of dispute (1.7.2003 to 19.11.2003). It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce tax thereon was set aside. The decision of the Tribunal in the case of B.A. Research India Ltd (supra), which was relied on in KSH International (P.) Ltd v. Commissioner is also to a similar effect. The facts of the case of B.A. Research India Ltd. are similar to the facts of the instant case. The Tribunal held that the respondent has exported Technical Testing and Analysis Service by way of testing and analysis in India and transmission of the test/analysis report to the foreign client. It was held that the service was complete when the report was delivered to the foreign client. The delivery of report to the foreign client was considered to be an essential part of the service. Accordingly, it was held that the service was exported. By applying relevant provisions of the Export of Services Rules, 2005, the Tribunal set aside the demand of service tax. The present appellant is fully supported by the case law discussed above. 8. The view taken by the Central Board of Excise and Customs vide Circular No. 66/2005-ST is that export of services would continue to remain tax-free even after withdrawal of Notification No. 6/94-ST dated 9.4.1999. The Board was examining the effect of w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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