TMI Blog2017 (8) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... ngth of these circular dated 24-2-2009 cannot be dislodged. Circular date 24-2-2009 clearly held that in the case of Business auxiliary services provided by Indian Agent who undertakes marketing in India of goods of foreign seller and received the commission for service in convertible foreign exchange and where recipient is located out side India the same would qualify as export of service. In view of the above extended period of limitation cannot be invoked in the instant case. Reliance placed in the case of Microsoft Corporation (India) Pvt. Ltd [2014 (10) TMI 200 - CESTAT NEW DELHI (LB)], where it was held that The service being provided may or may not result in any sales of the product in Indian soil. The transactions and activities between the appellant and Singapore principal company are the disputed activities. As such, the services are being provided by the appellant to Singapore Recipient company and to be used by them at Singapore, may be for the purpose of the sale of their product in India, have to be held as export of services. The services provided by the appellant qualify as export of service - appeal allowed - decided in favor of appellant. - ST/89056/13 - A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res that the assessee undertakes the marketing of spare and accessories of the said CNC machines in India and the assessee agreed to undertake the said marketing w.e.f. 0 1-01-2009. (c) The assessee shall promote and market in India, the spares and accessories supplied by YMTC . The details are mentioned at S. No.1 of the said Agreement. (d) The YMTC' sells the spares and accessories to customers in India on the basis of promotion, marketing done by the assessee. (e) As a consideration of this activity of promotion and marketing, the assessee gets commission from 'YMTC'. The details are at Sr. No.3 of the Agreement. (vi) The salient points of the Marketing Technical Support Agreement dated 23-01-2009 with 'YMSPL are as below : a) YMSPL is engaged in production of CNC machines. b) YMSPL desires that the assessee undertakes, inter-alia, the marketing, technical support and sales promotion said CNC machines, spares and accessories in India and also installation, commissioning. The assessee agreed to undertake the said activities w.e.f. 01-01-2009. (c) The assessee shall promote and market in India the CNC machines, spares and acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undertaken in India, it cannot be said that the use of the service has been outside India. 2. The matter has been examined. Sub-rule (1) of rule 3 of the Export of Services Rule, 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 service, Security Agency service, Storage and Warehousing service) where the place of performance of service can be established, it is provided that provision of such services would be 'export' if they are performed (or even partly performed) outside India. (iii) Category III [Rule 3(1)(iii)] : For the remaining services (that would not fall under category I or Il), which would generally include knowledge or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s apparent in the terms of said circular, the Indian agent who undertake marketing in India of goods of foreign seller and received the commission for the service in convertible foreign exchange would qualify for the benefit of export of service. The period covered in the instant case is 1-1-2009 to 26-2-2010. It is noticed that Circular No.141/10/2011-TRU dated 13-5-2011 further elaborated meaning of the term 'accrual of benefit' 'use outside India' in the following manner: 2. In the stated Circular it was inter alia, clarified that the words, used outside India should be interpreted to mean that the benefit of the service should accrue outside India . It is well known that services, being largely intangibles, are capable of being paid from one place and actually used at another place. Such arrangements commonly exist where the services are procured centrally e.g. audit, advertisement, consultancy, Business Auxiliary Services. For example, it is possible to obtain a consultancy report from a service provider in India, which may be used either at the location of the customer or in any other place outside India or even in India. In a situation where the consul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2-2009 clearly held that in the case of Business auxiliary services provided by Indian Agent who undertakes marketing in India of goods of foreign seller and received the commission for service in convertible foreign exchange and where recipient is located out side India the same would qualify as export of service. In view of the above extended period of limitation cannot be invoked in the instant case. 5.2 On merit it is seen that Tribunal in case of Microsoft Corporation (India) Pvt. Ltd[2014(36) STR 766 has observed as follows: 48. Without going into the detailed facts involved and the detailed submissions made by both the sides, I find that an identical dispute was the subject matter of another decision of the Bench constituting the same Members, in the case of M/s. Paul Merchants Ltd. v. CCE, Chandigarh [2013 (29) S.T.R. 257 (Tri.)]. The said difference of opinion referred to third Member stand resolved in favour of the assessee. It stand held by third Member that the services provided by a sub-agent in India to a service recipient located outside are export of services and hence not liable to be taxed. 49. Inasmuch as the same issue is involved in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT-Mum = 2013 (31) S.T.R. 738 (T)] wherein it stand held that when the services is rendered to third party at the behest of the assessees' customers, the service recipient is assessees' customer and not the third party i.e. his customer's customer. As such, the services being provided at the behest of the foreign telecommunication services provided to a person, roaming India were held to be constituting export services under the Export of Services Rules, 2005. The said decision stand subsequently followed by the Tribunal in the case of CESTAT, Mumbai v. Bayer Material Science Pvt. Ltd, v. CST, Mumbai [2014-TIOL-1064-CESTAT-Mum]. Business Auxiliary services provided by the assessee to their members located outside India by marketing their product in India was held to be export of services inasmuch as the service was held to be provided to the foreign located person who was also paying to the assessee on such services in convertible foreign exchange. After observing above Tribunal decision held as follow:- 54. In view of the above, the difference of opinion on various points is resolved as under : (i) That the Business Auxiliary Services of promotion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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