TaxTMI 
TaxTMI 
2010 (5) TMI 221
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....e case are that the appellant filed a refund claim of Rs.6,71,439/- for the period October 2005 to June 2007 on the ground that they are not liable to pay service tax as the appellant was appointed by foreign company for promoting their sales in India and appellants are getting commission from the foreign principal in foreign currency and their activities are considered as export services and the same are exempted form payment of service tax. However, they paid service tax under protest. The issue was settled and appellants activities had been considered as export of service and exempted from payment of service tax. After scrutiny of the claim, a show cause notice was issued to them as to why the refund claim should not be rejected due to v....
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....f limitation is without any authority of law. He further submitted that merely saying that the provisions of Section 11B of the Central Excise Act, 1944 are applicable to the service tax refund is not a speaking order. The order does not speak why the provisions of Section 11B of the Central Excise Act, 1944 are applicable to this case and mere saying that the refund claim is not admissible as per Notification No. 2/2007 is also not correct. He further submitted that in the case of KSH International Pvt. Ltd. Vs. Commissioner of Central Excise, Belapur reported in 2010-VIL-05-CESTAT-MUM on the identical facts. This Tribunal has allowed the appeal against the rejection of refund claim. He also submitted that the amount has been collected by ....
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...., the beneficiaries of services were located in India for ultimate consumption of the service provided in India". He further submitted that in the case of Microsoft Corpn. India Pvt. Ltd. Vs. Commissioner of Service Tax reported in 2009 (10) LCX0007 the Hon'ble High Court of Delhi while deciding the stay application has held that Indian Consumers pay for services which go out to owners, namely, Holding Company and part of it comes back to India in shape of commission. Economic and commercial activities also take place in India, hence stay was rejected. He further submitted that in view of the above decisions the service provided by the appellant is to their foreign principal is used in India. Hence, the refund claim is not acceptable. ....
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....5)(zzb) of the Finance Act, 1994 would be considered to have been exported when provided in relation to business or commerce, to a recipient located outside India. Sub-rule (2) further laid down that the provisions of any taxable service shall be treated as export of service when the following conditions are satisfied. a) such service is delivered outside India and used outside India; and b) payment of such service provided outside India is received by the service provider in convertible foreign exchange. 7. These facts are not in dispute. The rejection of refund claim was only on the ground that the service provided to their foreign supplier has been delivered outside India but used in India. The period involved is April 2005 to June 20....
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.... payments, commission was paid to the appellant by the foreign companies, in convertible foreign exchange. It is not in dispute that the requirement of the commission having to be paid in convertible foreign exchange was fulfilled by the appellant. What is in dispute is whether the business auxiliary service was delivered outside India and used outside India. The rendering of the service was complete only when the purchase orders canvassed by the appellant in India were received by the foreign companies. These purchase orders were, admittedly, received abroad. They were also, admittedly, acted upon by the foreign companies abroad. In other words, the benefit of the service provided by the appellant accrued to the foreign companies outside I....