TaxTMI 
TaxTMI 
2015 (10) TMI 2221
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....ice of maintaining accounts as well as custody of share is done in India. (b) Services of custody have been used in India as the same has been provided in relation to investments / securities of India companies. (c) Services are not 'export of services' as maintenance of custodial services are in terms of requirements of law in India. 3. Learned Counsel would draw our attention to the facts and take us through the records. It is his submission that provisions of Rule 3 of Export of Services Rules, 2005 during the relevant period till February 2007 did not require for complying with the condition that the services are delivered outside India and used outside India and the amount is received in convertible foreign exchange. It is his submission that during March 2007, the provisions have been changed and the requirement of complying with the condition of receipt of such services in convertible foreign exchange needs to be satisfied. He would submit that for the period in question in March 2007 the matter may be remanded back to the adjudicating authority as appellant are in a position to satisfy the adjudicating authority regarding the receipt of the payment in c....
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....ii) of this rule when provided in relation to business or commerce, be provision of such services to a recipient located outside India and when provided otherwise, be provision of such services to a recipient located outside India at the time of provision of such service. Provided that where such recipient has commercial establishment or any office relating thereto, in India, such taxable services provided shall be treated as export of service only when order for provision of such service is made from any of his commercial establishment or office located outside India. 5.6 It can be seen from the above reproduced Rule that rule talks about the services which are covered under this Rule are to be considered as Export of Service; and the category of services rendered by the appellant falls within the specified services as indicated herein above. Plain reading of the above said Rules clearly indicates that if the services are in relation to business or commerce to a recipient located outside India, it has to be considered as 'export of service'. It is nobody's case that the services rendered by the appellant to the FII's are not in relation to Business or Commerce of the said....
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....nbsp; (b) those specified in clause (i) of this rule except when the provision of taxable services specified in sub-clauses (d), (zzzc) and (zzzr) does not relate to immovable property; and (c) those specified in clause (ii) of this rule, when provided in relation to business or commerce, be provision of such services to a recipient located outside India and when provided otherwise, be provision of such services to a recipient located outside India at the time of provision of such service : Provided that where such recipient has commercial establishment or any office relating thereto, in India, such taxable services provided shall be treated as export of service only when order for provision of such service is made from any of his commercial establishment or office located outside India. (2) The provision of any taxable service shall be treated as export of service when the following conditions are satisfied, namely : (a) such service is delivered outside India and used outside India; and (b) payment for such service provided....
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.... 94 of the Finance Act, 1994 (32 of 1994), the Central Government hereby makes the following rules further to amend the Export of Services Rules, 2005, namely :- 1. (1) These rules may be called the Export of Services (Amendment) Rules, 2007. (2) They shall come into force on the date of their publication in the Official Gazette. 2. In the Export of Services Rules, 2005, in rule 3, for sub- rule (2), the following sub-rule shall be substituted, namely:- " (2) The provision of any taxable service specified in sub-rule (1) shall be treated as export of service when the following conditions are satisfied, namely :- (a) such service is provided from India and used outside India; and (b) payment for such service provided outside India is received by the service provider in convertible foreign exchange. Explanation. - For the purposes of this rule India includes the designated areas in the continental shelf and Exclusive Economic Zone of India as declared by the notifications of the Government of India in the Ministry of External Affairs numbers S.O. 429(E), dated the 18th July, 1986 and S.O. 643(E), dated the 19th Septembe....