TMI Blog2018 (11) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... affected by the performance of the service. Thus, when the person on whose instruction the services in questions have been provided and is located abroad, the destination of services in question has to be treated as abroad. Thus, the services provided by the appellant to Hunkeler AG is irrespective it was performed on the customers based in India but it is the export of service. In the given circumstances, the findings of both the adjudicating authority below to this aspect are held to be wrong and therefore are set aside. Classification of service being received by the appellant from PBAP - Held that:- The services received by the appellant are not merely customer oriented that is not merely for evaluation of customers/ tele- marketing/ customer relationship etc. but are in addition of management of the appellants organisation not only in the form of support, but also in the form of advisory. Even to the extent of strategising merger and acquisition, which is resorted to enhance operating efficiencies and to capture synergies in one or more functional areas as marketing, manufacturing R & D or Finance - These services are beyond the scope of business support services and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant was also proposed to be disallowed as being wrongly availed. The said proposal was confirmed initially by the Order-in-Original No.21 dated 07.03.2013. Being aggrieved, the appeal was filed before Commissioner (Appeals), who vide the order under challenge has upheld the findings of Assistant Commissioner. Being aggrieved, the appellant is before us. 2. We have heard Ms. Priyanka Rathi, Advocate for the appellant and Shri Sanjay Jain, ld. D.R. for the Department. 3. It is submitted on behalf of the appellant that the services are provided by the appellant to Hunkeler AG, a Switzerland Company i.e. based out of India and they were receiving the benefit of the services from the said foreign company in India that too, in convertible foreign exchange. Accordingly, the service provided falls under the definition of export of service as defined under Export of Service Rules, 2005. It is submitted that though because of those services Hunkeler AG was getting customers based in India but the service was actually provided to Hunkeler AG situated outside India. The findings of both the authorities to this aspect are alleged to be the wrong interpretation of the definition of expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Export of Service. (2) Appellant is receiving service from PAIB whether or not the same is Management and Consultant Service for which the appellant is entitled to avail the Cenvat Credit or it being a Business Support Service is out of the ambit of Rule 6 (3) of CCR. Issue-wise findings are as follows:- For adjudication of the first issue we need to understand the concept of export. It is enshrined under Article 286 (1) (b) of Constitution. According to which, for export, there should be existing two termini as those between which the goods were intended to move or between which they were intended to be transported and not a mere movement of goods out of the country without any intention of there being landed in specie in some foreign Port. Apparently, there is no difference between production or manufacture of saleable goods and production of marketable/saleable services in the form of an activity undertaken by the Service provider for consideration which correspondingly stands consumed by the service receiver. It therefore, follows that for export of service there are two termini between which the services are intended to move. However, goods being tangible in nature cro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce provider in convertible foreign exchange. It may be seen that the phrase delivered outside India used initially could not have been understood clearly in the case of services which is intangible and so the expression was replaced by is provided from India which is an expression better understood. However the meaning of the expression used outside India continued to create interpretational difficulty till this expression also finally got deleted on 27.02.2010. 6. In the present case, there is no dispute that the service recipient of the appellant is Hunkeler AG, a Switzerland Company based out of India. There is also no dispute that the charges for services so provided are received by the appellant in convertible foreign exchange. We are therefore of the opinion that the services provided falls in the definition of export of services. This Tribunal in M/s. Paul Merchants vs. CCE, Chandigarh 2013 (29) STR 257 has held that what constitutes export of service is to be determined strictly with respect to the provisions of Export of Service Rules, 2005. It is the person who requested for the service and is liable to make the payment for the same, who has to be treated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as performed on the customers based in India but it is the export of service. In the given circumstances, the findings of both the adjudicating authority below to this aspect are held to be wrong and therefore are set aside. 8. Now coming to the classification of service being received by the appellant from PBAP, we are of the opinion that the definition of Management Consultant Service and the Business Support Service first need to be looked into. As per Section 65 (65), of the Finance Act, 1944: management or business consultant means any person who is engaged in providing any service, either directly or indirectly, in connection with the management of any organisation or business in any manner and includes any person who renders any advice, consultancy or technical assistance, in relation to financial management, human resources management, marketing management, production management, logistics management, procurement and management of information technology resources or other similar areas of management; 8.1 The same is taxable under Section 65 (105) (r) of the Act. Such taxable service means any service provided to any person by a Management or Business Consultan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Accounting support for forecasting, budgeting and deal forecasting 2. HR support services. 3. Management support and consulting services 4. Marketing Assistance 5. Provision and/or coordination of legal and tax advice 6. Order processing (where required) 7. Business Development 8. Process Improvement Business transformation and six-sigma. 9. Merger and acquisitions 10. Certain advisory and support services. 10. The perusal makes it abundantly clear that the services received by the appellant are not merely customer oriented that is not merely for evaluation of customers/ tele- marketing/ customer relationship etc. but are in addition of management of the appellants organisation not only in the form of support, but also in the form of advisory. Even to the extent of strategising merger and acquisition, which is resorted to enhance operating efficiencies and to capture synergies in one or more functional areas as marketing, manufacturing R D or Finance. To our opinion, these services are beyond the scope of business support services and thus can rightly be classified under management consultancy service. We draw our support from Federal Express ..... X X X X Extracts X X X X X X X X Extracts X X X X
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