TMI Blog2010 (10) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... see on export of services - Hence, the appellants are not liable to pay service tax and interest thereon and penalty imposed on them -Accordingly, waiver of pre-deposit and stay and recovery of dues - Hence, the appeal in favour of assessee. Maintenance and Repair Services - Maintenance and Repair Services were performed entirely in India - Such services were also delivered in India - The MRS involved do not prima facie qualify for benefit of services exported - Accordingly, the demand to the related to MRS and interest sustainable - Pre deposit ordered in partly. - ST/STAY/542 & 543/2009 - 818 & 819/2010 - Dated:- 20-10-2010 - M.V. RAVINDRAN, P. KARTHIKEYAN, JJ. ORDER P. Karthikeyan, Technical Member - These are two a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Repair Services in respect of the contract products. 4. Vide the impugned order No. 77/2009 dated 30-7-2009, the Commissioner confirmed demand of Rs. 4,99,01,239 under BAS rejecting the claim of the assessee that the impugned services were exported. As regards the MRS, the Commissioner held that during the material period 15-3-2005 to 17-4-2006, to qualify for export, services had to be delivered outside India and used outside India. In the instant case, MRS were delivered and consumed in India. 5. We have heard both sides. As regards the marketing and sales services rendered in India in respect of products manufactured and exported by a foreign client, the CBEC had clarified that such services had to be treated as export since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eives commission for his services from foreign seller in convertible foreign exchange; 2. The matter has been examined. Sub-rule (1) of rule 3 of the Export of Services Rules, 2005 categorizes the services into three categories: (i) Category I [Rule 3(1)(i)] : For services (such as Architect service, General Insurance service, Construction service, Site Preparation service) that have some nexus with immovable property, it is provided that the provision of such service would be export if they are provided in relation to an immovable property situated outside India. (ii) Category II [Rule 3(1)(ii)] : For services (such as Rent-a-Cab operator, Market Research Agency service, Survey and Exploration of Minerals service, Convention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n U.K. and hands it over to the owner of such property having his business and residence in India, it would have to be presumed that service has been used outside India. Similarly, if an Indian event manager (a Category II service Rule service [Rule 3(1)(ii)]) arranges a seminar for an Indian company in U.K. the service has to be treated to have been used outside India because the plane of performance is U.K. even though the benefit of such a seminar may flow back to the employees serving the company in India. For the services that fall under Category III [Rule 3(1)(iii)], the relevant factory is the location of the service receiver and not the place of performance. In this context, the phrase used outside India is to be interpreted to me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such orders. Such services are taxed when imported; the Indian recipient pays service tax under the reverse charge mechanism. When services are similarly provided to a foreign enterprise by Indian agents, it cannot be held that export of services is not involved. Therefore there is no logic in the view that in the instant case export of marketing services (BAS) was not involved. Benefit of service accrued to the manufacturer of computer systems and peripherals based abroad. In any case, Commissioner cannot validly hold a view contrary to that held by the CBEC and communicated for implementation by the officers in the field. The case laws cited also support the claim of the assessee on export of services. Therefore prima facie the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assistant Registrar on 1-12-2010. Subject to such compliance being reported, pre-deposit of the balance amounts is waived and recovery thereof stayed till the disposal of the appeal. ST/STAY/543/2009 in Appeal No. ST/891/2009 8. Impugned order No. 81/2009 dated 12-8-2009 imposed the following dues on FIPL : (i) Service Tax of Rs. 1,99,44,422 under Business Auxiliary Services during the period 1-10-2007 to 30-9-2008. (ii) Interest on the above amount under section 75 of the Act. (iii) Penalty of Rs. 200 per day or at the rate of 2 per cent of such tax for every month, whichever is higher, under section 76. 9. The order pertains to the same liability as found against FIPL under BAS in Order No. 77/2009; for a subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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