TMI Blog2019 (3) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... ules, the said services would amount to export of service for the period prior to 1.7.2012. For the period after 1.7.2012, the Place of Provision of Services Rules, 2012 came to be introduced and as per Rule 3 of such Rules, the location of the service recipient has to be taken into account for deciding as to where the services have been provided. So for the entire period of dispute, since the service recipient is outside India, the same amounts to export of services. It is clear from the order of Revisionary authority that when the appellant had paid service tax and filed refund claims on the very same services, the department has granted refund holding the services as export of services. The department has granted refund upto the period 31.3.2011. The department therefore cannot contend that the services are not export of services for the period from 1.4.2011 to 30.6.2012 and 1.10.2013 to 30.9.2014 which is the disputed periods in these appeals. The services are not exigible to service tax being export of service - Appeal allowed - decided in favor of appellant. - Appeal Nos. ST/41798/2014 and ST/40131/2016 - Final Order Nos. 40412-40413/2019 - Dated:- 8-3-2019 - Ms. Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... work in India are able to use the contracting telecom operators services in the foreign country, and an Inbound Roamer is able to use the appellant s network services in India. 2.2 In other words, the appellant is the HNO for its subscribers in India, and is a VMTO for subscribers of FTOs ( Inbound Roamers ) with whom a roaming agreement has been executed. Inbound Roamers would have access to appellant s network under the International In-bound Roaming Facility. In such arrangements, the VMTO keeps track of the calls and messages logged for the duration of the International travel and logs the corresponding charges. The VMTO raises invoices on the HNO for services provided to them. It is relevant to note that services are provided by the VMTO to HNO, and not to the subscribers. The consideration for the telecom services are received in convertible foreign exchange. 2.3 The appellant submits that the issue has been decided on identical facts by the Tribunal in the case of Vodafone Essar Cellular Limited vs. CCE, Pune 2013 (31) S.T.R. 738 (Tri. - Mumbai). The Tribunal had observed in such order in paragraph 5.1 that the FTO is the service recipient since the roaming agreements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner, Service Tax, Delhi III, Division-XIV Anr.; 2017-VIL-469-DEL-ST. 2.6 The appellant had filed rebate claims under Rule 5 of the Export of Services Rules, 2005 r/w Notification No. 11/2005-ST dt. 19.04.2005 for rebate of service tax paid on International Inbound Roaming Services exported to FTOs. Upon rejection of these rebate claims, the appellant filed a Revision Application before the Government of India. Order No. 01-05/2018 dt. 23.01.2018 ( Order ) was passed by the Principal Commissioner Ex-Officio Additional Secretary to Govt. of India in adjudication of Revision Applications filed by M/s Vodafone West Limited and M/s Vodafone Cellular Limited against Orders-in-Appeal No. 199/2012(STC)/AK/COMMR(A)/ AHD dt. 03.09.2012 and CMB-CEX-000-APP-123 to CMB-CEX-000-APP-126-13 dt. 27.03.2013 on the issue of International Inbound Roaming Services provided by the appellant to FTOs. The Order upheld the decisions in Vodafone Essar Cellular Limited vs. CCE, Pune, 2013 (31) S.T.R. 738 (Tri. - Mumbai) and in Vodafone Cellular Ltd. v. CCE, Pune-III, 2014 (34) STR 890 (Tri.-Mumbai) while also upholding the applicability of Circular No. 111/5/2009-S.T. dt. 24.02.2009 to the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articular period. Thus, the said notification 36/2007 would show that the services are taxable. 3.2 Again in circular No. 90/1/2007-ST dated 3.1.2007, the department has clarified the levy of service tax on services provided to international inbound roamers. In para 4 and 5 of the said circular, it has been clarified that during the period of roaming, the Indian telecom service provides telephone services to an international inbound roamer and this service being consumed in India is not export of service.. Thus, from 15.1.2007, the said services are subject to levy of service tax and therefore the claim of the appellant that the activity amounts to export of service cannot sustain. 3.3 With regard to Circular No. 96/7/2007-ST dated 23.8.2007, which is the master circular, relied upon by the appellant, he submitted that the said circular is only for clarification on technical issues relating to taxation of service. The present issue is not technical in nature and it is with regard to the taxability of service. Therefore, the said master circular does not supersede the circular dated 3.1.2007. More in the Master Circular dated 23.8.2007, there is no mention of telecommunication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per Rule 3 of such Rules, the location of the service recipient has to be taken into account for deciding as to where the services have been provided. So for the entire period of dispute, since the service recipient is outside India, the same amounts to export of services. 5.3 In drawing such conclusion, we are assisted by the Master Circular dated 23.8.2007 issued by the department. It may be correct that in Circular No. 90/1/2007-ST dated 3.1.2007 such services of providing international inbound roaming facility has been clarified by the Board not to be export of service. Moreover, in the subsequent master circular dated 23.8.2007, it is specifically clarified that the said master circular supersedes all earlier circulars. The relevant paragraph is extracted below:- 6. This circular supersedes all circulars, clarifications and communications, other than Orders issued under section 37B of the Central Excise Act, 1944 (as made applicable to service tax by section 83 of the Finance Act, 1994), issued from time to time by the CBEC, DG (Service Tax) and various field formations on all technical issues including the scope and classification of taxable services, valuation of tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersedes all circulars, clarifications and communications, other than Orders issued under Section 37B of the Central Excise Act, 1944 (as made applicable to service tax by section 83 of the Finance Act, 1994), issued from time to time by the C.B.E. C., DG (Service Tax) and various field formations on all technical issues including the scope and classification of taxable services, valuation of taxable services, export of services, services received from outside India, scope of exemptions and all other matters on levy of service tax. With the issue of this circular, all earlier clarifications issued on technical issues relating to service tax stand withdrawn. (emphasis supplied) 44. What this circular does is to indicate, in an Annexure thereto, the classification (by a three digit code) of services for the purposes of levy of service tax. The Annexure does not refer to telecommunication services . This did not, however, mean that in relation to telecommunication services , the earlier Circular dated 3rd January, 2007 continued to operate. Paragraph 6 of the Circular dated 23rd August, 2007 makes it explicit that all circulars , clarifications and communications issued fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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