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TMI Blog2023 (5) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... stration No. AAACU7542CST001 for providing Technical and Testing Analysis Services falling under Section 65(105)(zzh). The Appellants have undertaken the work of 'Technical Testing and Analysis Services' for their parent organisation USP Holding LLC, United States by taking up a testing and analysis of the samples sent by them and the results of the testing analysis conducted by them is sent by e-mail and courier by the Appellant to United States. The Appellants have imported the Capital Goods without payment of Customs Duty in terms of Notification No. 52/2003-CUS and also procured consumables indigeneously in terms of Central Excise Notification No. 22/2003-CE. These Notifications specify that the Capital Goods can be imported without pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Service Tax, Ahmedabad Vs B A Research India Ltd., [2010 (18) STR 439 (TRIAhm] wherein an identical issue was before the Tribunal and it has been held that even mere delivery of the Test Reports outside India would qualify as export of services from India. However, the Adjudicating Authority has not considered this Case law and has not given any findings on the same in the impugned Order-in-Original. The Learned Counsel submits that the details given by them by way of actual evidence have not been properly considered by the Adjudicating Authority because of which he has held that the services rendered by them are not liable to be classified as export of services. The Learned Advocate also placed the reliance on the case law of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or materials or immovable property are situated outside India at the time of provision of services. In this case, the goods in question i.e. the samples have come to India and the testing has been done here. Hence on this count, the services cannot be said to be export of service. He reiterated the other findings of the Adjudicating Authority. He also submits that Service Tax has been paid by the Appellants in the normal course and the ST-3 returns do not reflect that the services were actually exported. 4. In his rejoinder, the Learned Counsel submits that in the first place the Show Cause Notice has not made any reference to amendment to the Second proviso of Rule 3(ii), nor this was discussed even in the Order-in- Original. Therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... analysis report is delivered to the client. In the present case, when such reports were delivered to the clients outside India, it amounts to taxable service partly performed outside India. The performance of the taxable service has not validity sanctity unless its report is submitted to the service receiver/client. The clients do not have any value for merely performance if no report is delivered to them. Consideration of the service is received by the appellants only when they deliver the study report and the certificate of the testing and analysis of the clinical trials conducted by them. Thus, delivery of the report is an essential part of their service and the service is not complete till they deliver the report. The report is delivere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices accrued to the foreign clients outside India. This is termed as 'export of service'. In these circumstances, the Tribunal takes a view that if services were rendered to such foreign clients located abroad, then, the act can be termed as 'export of service'. Such an act does not invite a service tax liability. The Tribunal relied upon the circulars issued and prior thereto the view taken by it in the case of KSH International Pvt.LtdVs . Commissioner and B.A. Research India Ltd. The case of the present respondent was said to be covered by orders in these two cases. To our mind, once the Hon'ble Supreme Court has taken the view that service tax is a value added tax which in turn is destination based consumption tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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