Enervision Services Pvt Ltd vs Commissioner Of Central Excise, ...

[Arising out of Order-in-Appeal No. 42-2008 dated 08/09/2008 passed by CC,CE&ST(Appeals), Hyderabad]

For approval and signature:

HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

1 Whether Press Reporters may be allowed to see 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 of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

ENERVISION SERVICES PVT LTD 504, BABUKHAN MILLENNIUM CENTRE, SOMAJIGUDA, HYDERABAD Appellant(s)

Versus

Commissioner of Central Excise, Customs and Service Tax HYDERABAD-II NULL L.B STADIUM ROAD, BASHEERBAGH, HYDERABAD, - 500004 ANDHRA PRADESH Respondent(s)

Appearance:

Ms. Sudershini Bannerjee, Advocate For the Appellant

Shri S. Teli, Deputy Commissioner(AR) For the Respondent

Date of Hearing: 19/03/2015

Date of Decision: 19/03/2015

CORAM:

HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

Final Order No. 20793 / 2015

Per : B.S.V. MURTHY

Under an agreement with M/s.Gas Turbine Technologies S.p.A, Italy (GTT), the appellant solicits orders for turbines and on receipt of orders, transmit the same to GTT. GTT has the right to accept or reject such orders. The commission paid by GTT is linked to the actual sale and not the number of orders procured. The commission payable is calculated on the invoice price of the product sold. The agreement provides that the commission would be calculated and transferred in the currency of transaction on which the commission is payable. The appellant filed rebate claim for the service tax paid on input services utilised by them for providing the output service. the rebate claim has been rejected on the ground that the output service was not exported and this is on the ground that the service was performed in India, the benefit was received by the recipients of the machines/equipments purchased by the Indian customers and therefore the service cannot be said to have been exported.

2. The learned counsel on behalf of the appellants submits that the service falls under Rule 3(iii) of Export of Services Rules, 2005 which requires that for consideration of a service as exported, the same has to be performed outside India and part performed outside India and in India is concerned as performance of outside India. In this case, the beneficiary of the orders procured by the appellant is located abroad and the service receiver also exercises discretion and all the orders solicited and obtained may not result in sale. This shows that the service is rendered to the recipient and it is duly considered and acted upon. That being the position, the service has to be held as performed both in India and abroad, covered by the provisions of Rule 3(ii) of Export of Services Rules. She also relies upon the decision in the case of GAP International Sourcing (India) Pvt. Ltd. Vs. CST [2014-TIOL-465-CESTAT-DEL].

3. The learned AR would reiterate the observations in the impugned order.

4. I have considered the submissions. In this case as submitted by the learned counsel, the service has to be held as rendered to the recipient abroad and used abroad. When the service recipient analyses the orders and decides either to accept the order or to reject the same, it has to be held that service was received by the recipient abroad and it is partly performed in India and partly performed abroad. Therefore the stand taken by the lower authorities that it cannot be considered as export of service cannot be sustained. In the result, the appeal is allowed with consequential relief, if any, to the appellant.

(Order pronounced and dictated in open court)

B.S.V.MURTHY TECHNICAL MEMBER

Raja.

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