TMI Blog2014 (4) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicants undertake the activity of technical requirement of Indian customers, assisting the customers in providing an understanding of the various spares supplied by the Singapore firm. In addition to this, as per the Agreement applicants also to undertake the activity of assisting in evaluating the creditworthiness of potential customers in India. Activities undertaken by the applicant under the Agreement for promotion and marketing of spare parts, obligation of collection of receivables etc. in India, hence it cannot be said that the service is used outside India - applicants have not made out a case for total waiver of the pre-deposit of the service tax - stay granted partly. - Appeal No.ST/89050/13 - Stay Order No. S/152/2014- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m and such activity undertaken by the applicants comes under the purview of Business Auxiliary Service. 5. The contention of the applicant is that as per the Agreement the service provider and recipient is located outside India and the applicants received the consideration amount in convertible foreign exchange. Therefore the same is export of service as per the Export of Services Rules, 2005. The applicants rely upon the provisions of the Rule 3 (2) of the Export Services rules, 2005. The contention is that if the service is provided from India and used outside India the same are to be treated as export of service. Applicants also rely upon the following decisions of the Tribunal: (i) Blue Star Ltd. vs. CCE, Bangalore 2008 (11) S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to in 2009. As per one Agreement, the applicants undertake the marketing technical service of CNC machines, spares and accessories in India. In the second Agreement the applicants undertake the activity of promoting and marketing of spares and accessories in India manufactured and supplier by the Singapore firm. IN respect of installation and commissioning of CNC applicants have paid appropriate service tax as provider of erection and commissioning service. The dispute in respect of other activities undertaken by the applicants on behalf of the Singapore firm such as sales and promotion of spare parts and accessories in India. The contention is that the service recipient is located outside India and service is used outside India, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xisting/prospective customers. It is understood that YMIN will have no authority for concluding upon the terms and conditions for sale, including payment terms and pricing. 1.1.2 Spares Stock-and-Sale Activity YMIN is free to carry on its own account the Stock-and-Sale activity. This would involve ascertaining and maintaining appropriate type and level of Spares Stock and supplying and selling requisite spares to the customers and YMT/YMS wherever needed by them. YMT and YMIN will mutually decide the price for supply of spares by YMT to YMIN. The sales pricing for the supply of spares to the customers of YMIN may be decided by YMIN in its sole discretion. 1.2 Activity/obligation of Collection of Receivable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to the facts and circumstances of the present case. 12. The applicants relied upon the provisions of Rule 3 (2) of Export of Service Rules, 2005 which provides as under: (2) The provisions of any taxable service specified in sub-rule (1) shall be treated as export of service when the following conditions are satisfied, namely:- (a) such service is provided from India and used outside India; and (b) payment of such service is received by the service provider in convertible foreign exchange. 13. In view of the fact that the activities undertaken by the applicant under the Agreement for promotion and marketing of spare parts, obligation of collection of receivables etc. in India, hence it cannot be said that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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