TaxTMI 
TaxTMI 
2015 (10) TMI 367
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....rs of FTO in India and therefore, such service cannot be treated as export of service. In all these appeals, the Adjudicating authority rejected the rebate claims. By the impugned order, the Commissioner (Appeals) upheld the Adjudication order. 3. The learned Advocate contested the denial of rebate claim on merit as well as on limitation. He submits that the Tribunal in the Appellant's own case Vodafone Essar Cellular Ltd Vs CCE Pune-II - 2013 (31) STR 738 (Tri-Mumbai) held in favour of the Appellant. Subsequently, in the case of Vodafone Cellular Ltd Vs CCE Pune-III - 2014 (34) STR 890 (Tri-Mum) , the Tribunal, following the earlier decision, allowed the rebate claim on merit, but it has held against the Appellant on limitation. He relied upon the following decisions:- a) Vodafone Essar Cellular Ltd Vs CCE, Pune-III 2013 (31) STR 738 (Tri-Mum) b) Vodafone Cellular Ltd Vs CCE, Pune-III 2014 (34) STR 890 (Tri-Mum) c) CST Mumbai-I Vs Vodafone India Ltd-2014-TIOL-1794-CESTAT-MUM d) GAP International Sourcing (I) Pvt.Ltd. Vs CST -2014-TIOL-465-CESTAT-DEL e) Alpine Modular Interiors Pvt.Ltd. Vs CST (Adj.) New Delhi - 2014-TIOL-517-CESTAT-DEL f) Microsoft Corporation (I)....
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....do not form part of interpretative criterion. It is submitted that the Tribunal while deciding the case of Vodafone Essar Cellular Ltd (supra), heavily relied upon the decision of the Tribunal in the case of Paul Ltd Merchants Ltd Vs CCE Chandigarh -2012-TIOL-1877-CESTAT-Del. The decision of the Tribunal in the case of Paul Merchant Ltd (supra) would not be applicable in the present case. It is submitted that the Tribunal has not dealt with the aspect of consumption of service. In the case of Paul Merchant Ltd (supra), a person situated abroad approaches Western Union for transfer of money to someone in India. In the present case, the person who is the service recipient of the Appellant is in India and therefore, there is a basic difference in the present case and Paul Merchant Ltd (supra). In the present case, the IIR was paying charges to the Appellant through the FTO. It is a case of payment of money to the Appellant through the FTO, cannot change the character of the service of the Appellant to the IIR directly. In the case of Paul Merchant Ltd (supra), there was a principle to principle that present relationship existed between Western Union and Paul Merchant Ltd and Paul Merc....
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....below the relevant portion of the said decision:- "5.1 We have perused the agreement entered into between the appellant and the foreign telecom service providers. As per the said agreement, the appellant has agreed to provide telecom services to the customer of the foreign telecom service provider while he is in India using the appellant's telecom net work. The consideration for the service rendered is paid by the foreign service provider. There is no contract/agreement between the appellant and the subscriber of the foreign telecom service provider to provide any service. Since the contract for supply of service is between the appellant and foreign telecom service provider who pays for the services rendered, it is the foreign telecom service provider who is the recipient of the service. From the provisions of law relating to GST in UK and Australia, relied upon by the appellant, this position becomes very clear. Your customer's customer is not your customer. When a service is rendered to a third party at the behest of your customer, the service recipient is your customer and not the third party. For example, when a florist delivers a bouquet on your request to your frien....
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....e treated have been used outside India because the place of performance is U.K. even though the benefit of such a seminar may flow back to the employee serving the company in India. For the services that fall under Category III [Rule 3(1)(iii)], the relevant factor is the location of the service provider and not the place of performance. In this context, the phrase 'used outside India' is to be interpreted to mean that the benefit of the service accrues outside India. Thus for category III services, it is possible that export of service may take place even when all the relevant activities take place in India so long as the benefits of these services accrue outside India." Thus what emerges from the above circular is that when the appellant rendered the telecom service in the context of international roaming, the benefit accrued to the foreign telecom service provider who is located outside India since the foreign telecom service provider could bill his subscriber for the services rendered. This is the practice followed in India also. When an Indian subscriber to, say, MTNL/BSNL goes abroad and uses the roaming facility, it is the MTNL/BSNL who charges the subscriber for t....
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.... discussed in detail in respect of principle of "equivalence" and the destination based consumption tax. In that case, the learned 3rd Member had observed as under:- "(ii) The principle of equivalence between the taxation of goods and taxation of service had been laid down by the Apex Court in the case of Association of Leasing & Financial Service Companies v. Union of India (supra) and All India Federation of Tax Practitioners v. Union of India (supra) in the context of constitutional validity of levy of Service Tax on certain services. This principle does not imply that Service Tax should be levied and collected in exactly the same manner as the levy and collection of tax on goods or that export of service should be understood in exactly the same manner in which the export of goods is understood. In fact the question as to what constitutes the export or import of service was neither raised nor discussed in the above-mentioned judgments of the Apex Court. As discussed in this order, the Export of Services Rules, 2005 are in accordance with the Apex Court's ruling in the above-mentioned judgments that Service Tax is a value added tax, which in turn is a destination based cons....