Commissioner Of Service Tax, Mumbai Ii vs Georg Fischer Piping Systems P. Ltd

(Arising out Order-in-Appeal No. MUM-SVTAX-002-APP-413-13-14 dated 07.10.2013 passed by the Commissioner of Central Excise (Appeals), Mumbai I)

For approval and signature: Honble Mr. P.S. Pruthi, Member (Technical)

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 No 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

Vs.

Georg Fischer Piping Systems P. Ltd. Respondent

Appearance:

Shri S.V. Nair, AC(AR) for the appellant Shri Kevin Shah, CA for the respondent

CORAM:

Honble Mr. P.S. Pruthi, Member (Technical)

Date of hearing : 21.04.2015 Date of decision : 21.04.2015

O R D E R No:..

This appeal is directed against impugned Order-in-Appeal passed by the Commissioner (Appeals) in which he set aside the order of Asst. Commissioner and allowed consequential relief.

2. The respondents are agent of M/s. Georg Fischer Piping Systems P. Ltd., Switzerland, who manufactures industrial pipes. The respondent provided service to the entity abroad by way of procuring orders from customers in India. The entity abroad was selling the pipes to customers in India on the basis of these orders. The respondent filed a rebate claim of tax paid or input services, under Rule 5 of the Export of Service Rules, 2005 on the ground that the services rendered by them amounted to export of service. The Adjudicating Authority rejected the rebate claim for the reason that the beneficiary of the entire activity is an Indian consumer, therefore, the service of the respondent cannot be treated as export of services. He relied on CESTAT stay order in ST/276/2009 in the case of Microsoft Corpn. (I) P. Ltd. In appeal, the Commissioner (Appeals) set aside the order of the Adjudicating Authority holding that the beneficiary of the service provided by the respondent is the respondent company abroad.

3. Heard both sides and considered the submissions.

4. Ld. AR reiterates the grounds of appeal which state that the entire activities are undertaken in India in relation to the sale of the goods in India. He also states that the issue has not been considered extensively by CESTAT in the case of Microsoft Corpn. (I) P. Ltd. Ld. AR also argued that the rebate is partly hit by limitation of time because the period involved is August 2007 to March 2008 whereas the rebate claim was filed on 19.02.2009.

5. The ld. counsel appearing for the respondent submitted copies of invoices which indicate that the principal entity abroad is directly raising the bills to the customers in India and the respondent did not come into picture as far as sale of goods to the customers is concerned.

6. I have carefully considered the submissions made by both sides.

7. I agree with the Commissioner (Appeals) that the service provided by the respondent is limited to procurement of orders which are sent to the principal entity abroad. Thereafter, the role of the respondent ends in as much he is nowhere connected with the actual sale of the goods by the entity abroad to the customers in India. Rule 3(1)(iii) of the Export of Service Rules, 2005 comes into picture as the service concerned is Business Auxiliary Service and the export is deemed to have taken place if the beneficiary is abroad and the payment is received in foreign exchange in India. These two conditions being satisfied, I hold the service to be export of service. Reliance is placed on the case of Microsoft Corpn. (I) P. Ltd. 2014 (36) STR 766 (Tri-Del) as well as the case of Paul Merchant 2013 (29) STR 257 (T-Del).

8. As far as the averments of ld. AR that the rebate is partly hit by limitation, I find that this issue is neither raised in the Order-in-Original or Order-in-Appeal nor in the grounds of appeal filed by the department. Therefore, I do not accept this plea at this stage.

9. The appeal is dismissed with consequential benefits in accordance with law.

(Pronounced in Court)

(P.S. Pruthi) Member (Technical)

//SR

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