TMI Blog2019 (10) TMI 1107X X X X Extracts X X X X X X X X Extracts X X X X ..... submission of the Ld. Counsels for the assessee regarding the fact that the sale of the products and services manufactured or provided by the Foreign Company have been made by the assessee to the Indian customer / client is completely immaterial inasmuch as the assessee has provided the services at the behest of service recipient located outside India - thus, the subject services are to be held to be used outside India as well as delivered outside India and therefore, constitutes export of service on which no service tax stands payable. The impugned demand of service tax is set aside - appeal allowed - decided in favor of assessee. - S. Tax Appeal No. 33 of 2009, 50 of 2009 - FO/76382-76383/2019 - Dated:- 22-10-2019 - HON BLE MR. P. K. CHOUDHARY, MEMBER (JUDICIAL) AND HON BLE MR. P. V. SUBBA RAO, MEMBER (TECHNICAL) Shri Samir Chakraborty, Sr. Advocate Shri Rajeev Agarwala, C. A. for the Appellant Shri S. S. Chattopadhyay, Authorized Representative for the Respondent ORDER PER P.K. CHOUDHARY : Since both the appeals have been filed against Order-in-Original dated 26.11.2008 passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice for the subsequent period March 2007 to June 2007, against which portion the Revenue is in Appeal bearing no. ST/50/2009. 3. Dr. Samir Chakraborty, Sr. Advocate, and Shri Rajeev Agarwal, CA, appeared for the assessee and Shri S. S. Chattopadhyay, A.R. appeared for the Revenue. 4 At the outset, the Ld. Counsels for the assessee submitted that the Export of Services Rules, 2005, as introduced in the statute vide Notification no. 9/2005-ST dated 03.03.2005, w.e.f. 15.03.2005 has been amended from time to time. He took us through the various amendments made in the Export Rules as also enclosed in page nos. 79 to 85 of the appeal paper book. He submitted that the provision contained in Export Rules from 15.03.2005 to 18.04.2006, export of business auxiliary services meant such taxable services which are provided or used in or in relation to commerce or industry and the recipient of such service is located outside India. He submitted that during that period, there was no condition that service should be delivered outside India and used in business or for any other purpose outside India . He accordingly submitted that during the period from 15.03.2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice cannot be said to be delivered in India. The Ld. Counsels relied on the decisions of this Tribunal in the case of Airbus Group India Pvt. Vs. CST 2016 (45) STR 120 (Tri), CST vs. AVL India Ltd 2017 (4) GSTL 59 (Tri) and Sumitomo Corporation India Pvt Ltd vs. CST 2017 (50) STR 299 (Tri). He also contested the demand on limitation and imposition of penalty. 5. The Ld. AR for the Revenue supported the findings made by the Ld. Commissioner and submitted that since the end buyers are located in India, the services rendered by the assessee have been confined in Indian soil even though the products of the Foreign Company have been sold or marketed in India. He submitted that in the given case of assessee, the services can neither be said to be have been used or delivered outside India, the subject services never constituted export of services. On the said count, he prayed that the portion of demand dropped by the Ld. Commissioner be also demanded for which the Revenue has filed the appeal. 6. Heard both the sides and perused the appeal records. 7. We find that the Ld. Commissioner in his impugned order has accepted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt. 5. On the first issue relating the appellants liability under BAS it is now a well settled legal position that the service involved is in fact exported out of India and there is no service tax liability. In M/s. Paul Merchants Ltd. v. CCE, Chandigarh reported in 2013 (29) S.T.R. 257 (Tri. - Del.) it is held that what constitutes export of service is to be determined strictly w.r.t. the provisions of Export of Services Rules, 2005. It is the person who requested for the service and is liable to make payment for the same who has to be treated as recipient of service and not the person affected by the performance of the service. Thus, when the person on whose instructions the services, in question, has been provided and is located abroad, the destination of services, in question, has to be treated abroad. The destination has to be decided on the basis of place of consumption, not the place of performance of service in case of Business Auxiliary Service. In Microsoft Corporation (I) Pvt. Ltd. v. CST, New Delhi reported in 2014 (36) S.T.R. 766 (Tri. - Del.), the Tribunal held that the Business Auxiliary Services of promotion of market in India for foreign com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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