TMI Blog2018 (11) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... recipient is not available in the ordinary course of business that the place of provision shall be the location of the provider of service. In the present case, service recipient is JAL Baglihar Hydro-electric Project which is in the State of J&K. According to this Rule the place of provision of service provided by the appellant is State of J&K. The Place of Provision of Service is J&K which, as discussed, is outside the taxable territory in accordance of Section 66B. The Department herein was not liable to charge the service tax qua the said provision of service. Since it was deposited by the appellant without having this understanding, the appellant is very much liable to get refund thereof. The adjudicating authority below is, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of J K which is outside the taxable territory and accordingly they filed refund claim under Section 11B of the Central Excise Act, 1944. The refund application was initially rejected by the Assistant Commissioner vide its order dated 12.09.2014 holding that the appellant as well as service recipient (JAL) are located in the taxable territory relying upon Rule 8 of the Place of Provision of Service Rules, 2012. Aggrieved thereof, the appeal was filed before the Commissioner (Appeals) who has rejected the same following the same observation. Being still aggrieved, the appellant is before this Tribunal in the present appeal. 3. We have heard ld. Sh. Manish Gaur, ld. Advocate for the appellant and Sh. R. K. Manjhi, ld. AR for the Department. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Del.) While rebutting these arguments, it is submitted on behalf of the Department that as per Rule 14 of the Place of Provision of Service Rules, 2012 it is clear that if the provision of a service can be determined under two different rules thereof, it will be the later one which shall prevail. It is submitted that irrespective of the applicability of Rule 3 and 5 thereof, since Rule 8 is equally applicable, it being later has to prevail. Both the adjudicating authorities have relied upon the said rule. Appeal accordingly deserves dismissal. 5. After hearing both the parties, we are of the opinion as follows- It is an admitted fact that the appellant vide agreement with JAL was giving Consulting Engineering Services to the later ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her for consideration and includes a declared service. The definition excludes certain transactions to not to be classified as service as mentioned in sub-clause (a) to sub-clause (c) with the respective Explanations No.1, 2 and 3. Explanation 3(b) is relevant for the present controversy which reads as follows: 3(b) An establishment of a person in the taxable territory and any of his other establishment in a non-taxable territory shall be treated as establishments of distinct persons. Explanation 4 further clarifies that a person carrying on a business through a branch or agency or representational office in any territory shall be treated as having an establishment in that territory. Both these provisions make it clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision of services. According to Rule 3 thereof: Place of Provision of a service shall be the location of recipient of service provided that in case the location of service recipient is not available in the ordinary course of business that the place of provision shall be the location of the provider of service. In the present case, service recipient is JAL Baglihar Hydro-electric Project which is in the State of J K. According to this Rule the place of provision of service provided by the appellant is State of J K. Rule 4 thereof talks about the place of provision on the basis of performance. This rule is with respect to goods or qua provided by way of remote location by way of means, hence is not applicable in the present situation. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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