M/S Prime Energy Pvt. Ltd vs Cst, New Delhi
- CitationAppeal No. ST/51971/2014-ST(SM)
Ratio decidendi
The rule this decision rests on
Where a service is provided by an Indian dealer to a foreign principal and the consideration is received in convertible foreign exchange, the service is to be treated as an export of service, and the place of effective use and enjoyment of the service being in India does not by itself take the transaction outside export; a refund claim for such services cannot be rejected on that ground alone. Where the same question has already been decided by this Tribunal in a binding line of authority, the adjudicating authority must follow that decision and the order rejecting the refund claim on a contrary view cannot be sustained; the matter is therefore set aside and remanded for fresh consideration in light of that decision.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No. 91/ST/Appeal/DLH-IV/2013 dated nil passed by the Commissioner (Appeals), Central Excise, Delhi]
For Approval & Signature :
Honble Mr. R.K. Singh, Member (Technical)
1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it would 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 Department Authorities?
M/s Prime Energy Pvt. Ltd. Appellant
Vs.
CST, New Delhi Respondent
Appearance:
Ms. Nupur Maheshwari, Advocate - for the Appellant
Shri B.B. Sharma, D.R. - for the Respondent
Coram : Honble Mr. R.K. Singh, Member (Technical)
F. Order No. 50643/2015
Per R.K. Singh :
Appeal has been preferred against Order-in-Appeal No. 91/ST/Appeal/DLH-IV/2013 dated 8.1.2014 in terms of which the appellants refund claim amounting to Rs.28,76,109/- was disallowed on the ground that their case is not covered by the judgement of the Tribunal in the case of Paul Merchant Vs. CCE 2013 (29) STR 256 (Tri.) as the services were performed in India.
2. The facts are that the appellants are the dealers of M/s MHI Engine System Asia PTE Ltd., Singapore and as per the contract they provided pre-delivery technical service, delivery service, warranty service, maintenance service in respect of diesel generating sets for which they got payment in convertible foreign exchange from M/s MSI Engine System Asia PTE Ltd. The Commissioner (Appeals) held that in this case services were not used outside India as their effective use and enjoyment took place in India. In this regard we find that the issue is no longer res integra and is covered in favour of the appellants by the decision of this Tribunal in the case of Simpra Agencies Vs. CCE 2014 (36) STR 430 (Tri.-Del.) where following CESTAT judgements in the case of Paul Merchants Ltd. (supra) and Gap International Sourcing (India) Pvt. Ltd. Vs. CCE 2014-TIOL-465-CESTAT-Del., it was inter alia held that even providing after sale warranty service on behalf of the foreign client would be covered under the scope of export of service when the payment was received in convertible foreign exchange.
3. In the light of the aforesaid judgements, I do not find the impugned orders sustainable. I accordingly set it aside the impugned order and remand the case to the original adjudicating authority to consider the appellants refund claim in the light of the judgement in the case of Simpra Agencies (supra) cited above.
(Dictated & pronounced in open Court)
(R.K. Singh)
Member (Technical)
RM
1
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