TMI Blog2009 (3) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... les – as per Rule 5 ibid, the Appellants were eligible for refund of the service tax paid on such service exported to GMC, USA - ST/239/2007 - 105/2009-ST - Dated:- 5-3-2009 - Shri D.N. Panda, Member (Judicial) Shri Rakesh Kumar, Member (Technical) (Final Order No. 105/2009-ST dt. 5.3.2009 certified on 20.3.2009 in Appeal No. ST/239/2007) Shri Bipin Garg, Adv. for Appellant. Shri S. Gautam, DR for Respondent. Per Rakesh Kumar: The Appellant is agent of M/s. General Motor Corpn., USA (hereinafter referred to as GMC) and they procured orders/contracts from Indian Railways for GMC. They are registered with the jurisdictional Central Excise Office as service tax assessee providing the taxable service of Business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he recipient, the same has to be treated as export of the service in terms of sub-Rule 3 of Rule 3 of Export of Services Rules,2005, that the conditions (a)(b) (c) of the proviso to sub-rule (3) are applicable only in a situation where the service recipient abroad has any commercial or industrial establishment or any office relating thereto, in India, and only in such a situation the conditions mentioned in clause (a)(b) (c) of the proviso have to be satisfied one of such condition being that the payment for such service is received by the service provider in convertible foreign-exchange; that GMC, do not have any commercial establishment or office in India and therefore, the proviso to sub-rule (3) of Rule 3 is not applicable and that in v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Rule 3 of Export of Services Rules, 2005 reads as under: 3. Export to taxable service - The export of taxable service shall mean, - (1) in relation to taxable services specified in sub-clauses (d),(p),(q),(v) and (zzp) of clause (105) of section 65 of the Act, such taxable services as are provided in relation to an immoveable property which is situated outside India' (2) in relation to taxable services specified in sub-clauses (a), (f), (h), (i), (j), (l), (m), (n), (o), (s), (t), (u), (w), (x), (y), (z), (zb), (zc),(zi), (zj), (zn), (zo), (zq), (zr), (zt), (zu), (zv), (zw), (zza), (zzc), (zzd), (zzf), (zzg), (zzh), (zzi), (zzj), (zzl), (zzm), (zzn), (zzo), (zzp), (zzs), (zzt), (zzv), (zzw), (zzx) and (zzy) of clause (105 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible foreign exchange; (ii) Such taxable services which are provided and used, other than in or in relation to commerce or industry, if the recipient of the taxable service is located outside India at the time when such services are received. Explanation - For the purposes of this rule India includes the designated areas in the Continental Shelf and Exclusive Economic Zone of India as declared by the notifications of the Government of India in the Ministry of External Affairs Nos. S.O.429(E), dt.l8th July,1986 and S.O.643(E),dt.l9th Sept'06 . 5. The service provided by the Appellant to GMC is taxable under Section 65(105)(zzb) of the Finance Act,1994 and this service is covered by sub-rule 3 of Rule 3, as there is no dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, the Tribunal held that the service has been provided and received in India and it was not a case of export of service. Therefore, this judgment of the Tribunal is not applicable to the facts of this case. We, therefore, hold that the service provided by the Appellant to GMC, USA has to be treated as 'export of service' under Rule 3(3) of the Export of Service Rules and therefore, the terms of the provisions of Rule 5 ibid, the Appellants were eligible for refund of the service tax paid on such service exported to GMC, USA. 6. In view of the above discussions, the impugned order is not correct and the same is not sustainable. The impugned order is, therefore, set aside and the appeal is allowed. (Order pronounced on 5.3. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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