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TMI Blog2017 (6) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... d circumstances that the amount payable to the appellant by the service receiver situated outside India, but paid by the ONGC (ONGC awards contracts for Oil & Gas exploration to the principal of the Appellant), whether amounts to receipt of consideration in convertible foreign exchange, so as to qualify as export of service. The second issue regarding classification of the service which as per the appellant is "Business Auxiliary Service" and not "Management Consultancy Service" as determined by the courts below. 2. The brief facts of the case are that the nature of services rendered by the appellant to M/s Transocean INC is as per the contract, commonly known as "Consultancy Agreement" executed between M/S SEDCO Forex International Drilli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in India and efforts to resolve the same favourably. (vi) On purchase in India of equipment, supplies, services, repairs, etc., which may be required in connection with any work in India. (vii) On matter relating Government relations, rulings, taxation and legal matters and accounting practices in connection with their operations in India. (viii) On matters of housing, office facilities and hiring of local personnel for their work. (ix) On any improper use of companies name, patents or proprietary rights in India by any person. (x) On various laws and regulations prevalent in India concerned with their operations. It is revealed from the aforesaid master contract that besides the aforesaid responsibilities of advisory nature, M/s JOG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stries Ltd. Versus Commissioner of Central Excise, being Final Order No.ST/A/53813/2015-CU(DB) dated 06/11/2015 reported at 2016 (42) S.T.R. 537 (Tri. - Delhi). In the said judgment this Tribunal have followed the judgment of Hon'ble Supreme Court in the case of J.B. Boda reported at 1997 (223) I.T.R. 271 (SC) and also followed the ruling of this Tribunal in Paul Merchants Ltd. Versus Commissioner - 2013 (29) S.T.R. 257 (Tribunal). The Id. counsel further pointed out from the findings recorded by the Additional Commissioner, wherein at one place, it is mentioned that the contracts between ONGC and the foreign contractors recognized M/s JOGPL as their Indian Agent. Further, the contract stipulated direct payment of commission by ONGC to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant, distinguishing the judgment of Hon'ble Supreme Court in the case of J.B. Boda & Company (supra). Thus, by implication the same Bench of this Tribunal have overruled their earlier judgment in the appellant's case, which was rendered on 24/11/2014, by its subsequent judgment dated 06/11/2015 in the case of National Engineering Industries Ltd. (supra). Further, referring to the ruling of National Engineering Industries Ltd. where the contention was that the commission was received directly from Indian buyers, it was held, still in effect commission was received from foreign supplier because the Indian buyer directly paid commission to National Engineering Industries Ltd. on behalf of the foreign supplier instead of first se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment of CESTAT in the case of Paul Merchants (supra) read with judgment of the Supreme Court in the case of J. B. Boda - 1997 (223) ITR 271 (SC). Accordingly, we do not find the impugned order to be sustainable. The appeal is allowed." Accordingly, the Id. counsel prays for allowing the appeal with consequential benefits. 7. The Id. A. R. for Revenue relies on the impugned order. 8. Having considered the rival contentions and on perusal of the facts on record, we find that the Additional Commissioner's order is self contradictory on facts. We further find that in the facts of the instant case, the privity of contract is between the appellant - M/s JOGPL and the service receiver, namely; M/s Transocean INC, located in USA. Furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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