TaxTMI 
TaxTMI 
2012 (8) TMI 568
X X X X Extracts X X X X
X X X X Extracts X X X X
....t, 1994. On a sequel of case booked by Director General of Central Excise Intelligence (DGCEI), the demand of Service Tax was confirmed on account of money transfer services on behalf of Western Union Financial Services Inc. (WU in short) to a person in India and various penalties were imposed against the applicant. 3. The contention of the applicant is that financial services business relates to provision of money transfer service into India under contractual agreement with the principal which is located outside India. The services rendered by the applicant benefited the principal located outside India. Therefore, the applicant is not liable to pay service Tax since the services covered under export of services. The contention is t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....licant would be entitled to benefit under Export of Services Rules, 2005 and the same logic should apply to money transfer service as well. The applicant has also placed reliance on the illustration (iv) of the Board's Circular dated 24-2-2009, whereby it has been clarified that the relevant factor is the location of the service receiver and not the place of performance. The applicant has also made a feeble attempt on limitation as well. 4(i). The contention of the learned Jt. CDR is that the applicant has mainly relied on the decision of Muthoot Fincorp Ltd. (supra) where the dispute related to the period from 1-7-2003 to 31-1-2006 whereas in the present case, the period involved is from 15-3-2005 to 31-3-2008. Therefore, the said ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ard's Circular dated 24-2-2009, is also misplaced, since, the circular clearly brings out that the service tax is a consumption based tax, and what is important is the location of service receiver. The illustration given in clause (iv) of the Circular relates to remittances by Financial Institutions, whereas in the present case, the remittance has come from an individual abroad to his relative in India. WU is not authorized to do any business or commercial transaction like banks or other financial institutions. In the present case the delivery of service has been done to a recipient in India and the service has been used in India and hence, it cannot be said that the service has been used outside India. 4(iii). As regards limitation....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e India is received in convertible foreign exchange. From the above it follows that service has to be provided to someone first, then it is to be delivered to someone and finally it has to be used by someone. It is pertinent to mention here that "giving" is complete only when someone takes it. Similarly, "delivery" is complete only when someone has received it, otherwise it is just throwing. The delivery in the instant case, is complete only when it is received by the recipient in India. Therefore, the service provided by the applicant would not be covered under export of services. In Rule 3 of the Export of Services Rules, 2005 as on 1-3-2007, the word "delivery" outside India has been replaced by "provided from India and used outside I....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s findings in para 4.11 of the impugned order as to how the applicant suppressed the material facts and furnished the information only after the officers of DGCEI initiated the enquiry. Moreover the question of limitation is a question of fact and law, which would be considered at the time of deciding the appeal. We find that the applicant has not been able to make out prima facie case for total waiver of pre-deposit of Service Tax. The applicant has also not pleaded financial hardships. However, the learned Jt. CDR fairly conceded that out of the total demand of Rs. 5.12 crores, demand for the period involved from 1-4-2006 to 31-3-2008 works out to Rs. 4.4 crores. Hon'ble Supreme Court in the case of Assistant Collector of Central Excise, ....