Custom, Excise & Service Tax Tribunal
Commissioner Of Service Tax vs Bayer Material Science P. Ltd on 25 April, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. ST/384/11 Mum
(Arising out of Order-in-Appeal No. M.1/AV/101/2011 dated 22.02.2011 passed by the Commissioner of Central Excise (Appeals), Mumbai)
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
Commissioner of Service Tax,
Mumbai II
:
Appellant
Versus
Bayer Material Science P. Ltd.
Respondent
Appearance Shri S. Dewalvar, Addl. Commissioner (A.R.) For appellants Shri Prasad Praanjape, Advocate For Respondents CORAM:
Shri Ashok Jindal, Member (Judicial) Date of Hearing : 25.04.2014 Date of Decision : 25.04.2014 ORDER NO.
Per Ashok Jindal Revenue is in appeal against the impugned order sanctioning the refund claim of the service tax paid by the respondent under Business Auxiliary Service.
2. Brief facts of the case are that the respondent is providing Business Auxiliary Service to their principals located outside India by marketing their product in India. It is not in dispute that the remuneration received by the respondent was in foreign exchange. Therefore, the respondent filed refund claim of the service tax paid on these service but the refund claim was rejected by the adjudicating authority on the premise that as the goods have been marketed in India therefore, the service has been received in India. The said order was challenged before the Commissioner (Appeals) who relying on the CBEC Circular No. 111/05/2009 dated 24.02.2009, allowed their claim. Aggrieved by the said order, the Revenue is in appeal.
3. Heard both sides.
4. The learned A.R. submits that in this case, although the principals located outside India but all the services have been marketed and consumed in India. Therefore, the respondents are not entitled for the refund claim.
5. On the other hand, the learned Counsel appearing on behalf of the respondent submits that in fact, the recipient of services is located outside India and the service has also been received by him outside India. In these circumstances, it is a case of export as per Rule 3 (1)(iii) of the Export of Service Rules, 2005. Therefore, they are entitled for the refund claim.
6. Considered the submissions made by both the sides.
7. A similar issue came up before this Tribunal in the case of Vodafone Essar Cellular Ltd. vs. CCE Pune III - 2013 (31) STR 738 wherein it was held that the telecom service provided in India to International in-bound roamers registered with foreign telecom network operator, payment received from impugned foreign telecom operators in convertible foreign exchange, in that set of facts this Tribunal has held that the service have been provided outside India as an export of service. In this case, the respondent is in a better footing than in the case of Vodofone Essar Cellular Ltd. (supra) wherein it was held that the service recipient is the foreign telecom service provider and not the subscriber of the foreign telecom service in India and providing service in India and it is a case of export of service. In the circumstance, I hold that the learned Commissioner (Appeals) has rightly held that the case of export of service as per Rule 3 (1)(iii) of Export of Service Rules, 2005. In the circumstance, I do not find any infirmity with the impugned order and the same is upheld. The appeal filed by the Revenue is dismissed.
(Dictated in Court) (Ashok Jindal) Member (Judicial) nsk ??
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