TMI Blog2011 (9) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to the business of the recipient, located outside India - Held that: instead of foreign exchange going out of India, there is conservation of foreign exchange in India to the extent of commission earned by the service provider appellant in view of the arrangement made by the service recipient abroad in that behalf through Indian Railways - Appeal is allowed - ST/598/2007 - ST/456/2011(PB) - Dated:- 5-9-2011 - S/Shri D.N. Panda, Sahab Singh, JJ. REPRESENTED BY : Shri Bipin Garg, Advocate, for the Appellant. Shri R.K. Gupta, SDR, for the Respondent. [Order per : D.N. Panda, Member (J)]. The short question involved in this case is whether the service provider appellant in India getting rupee value being equivalent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07-Cus., decided on 5-3-2009 by the Tribunal. This decision has been reported in 2009 (15) S.T.R. 68 (Tri.-Del.). It was made known to us today by Revenue that they had gone in appeal before the Hon ble High Court of Rajasthan as reported in 2009 (15) S.T.R. 68 (Tri.-Del). 4. The Assessee has succeeded in the past as aforesaid. There is no dispute that the appellant booked business for the foreign supplier M/s. General Motor Corporation for export of goods to Indian Railways. Such aspect remained undisputed. Payment in foreign exchange was made to General Motor Corporation by Indian Railways. Instead of General Motors sending remittances to the appellant directly towards consideration of the later, Indian Railways paid its equivalent rupe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. 7. There is no cogent evidence on record to find that the exporter had any office in India. When the exporter had no office in India, the proviso to sub-rule (3) of Rule 3 of the Export Service Rules, 2005 does not apply. If the recipient of service had no commercial or industrial establishment or any office in India, the service provided to that recipient has resulted in saving of foreign exchange in India. The appellant is governed by the reasoning given by Tribunal in the past. For convenience of reading, paras 4 and 5 of the decision reported in 2009 (15) S.T.R. 68 is reproduced as under :- 4. Rule 3 of Export of Services Rules, 2005 reads as under : 3. Export to taxable service. - The export of taxable service shall mean, - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erce or industry and the recipient of such services is located outside India : Provided that if such recipient has any commercial or industrial establishment or any office relating thereto, in India, such taxable services provided shall be treated as export of services only if (a) order for provision of such service is made by the recipient of such service from any of his commercial or industrial establishment or any office located outside India; (b) service so ordered is delivered outside India and used in business outside India; and (c) payment for such service provided is received by the service provider in convertible foreign exchange; (ii) Such taxable services which are provided and used, other than in or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, in the Appellant s own case, reported in 2008-TIOL-939-CESTAT-Del. has held that just because commission was received by the Appellant through Indian Railways in Indian rupees as Indian Railways made payment to GMC in foreign currency after deducting the commission payable to GMC, it cannot be said that the service provided by the Appellant to GMC, USA is not export of service. In the case of ETA Travel Agency Pvt. Ltd. (supra) cited by ld. DR, the offshore service receiver had an office in India and the commission had been received from the bank account of such local office of the offshore service receiver and in view of the facts of the case, the Tribunal held that the service has been provided and received in India and it was not a ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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