AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2016 (6) TMI 1070
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....tial Authorised Prometric Testing Centres (APTCs); Assistance in delivery of marketing materials and information forms o potential APTCs' Organizing attendance at conferences and meetings held by the IT clients; Liasoning with the representatives of the IT clients; Providing ongoing assistance and support to the APTCs in carrying out their testing services on need basis. Prometic I B V negotiates and contracts with APTCs. All costs associated with these services are borne by the associated enterprise. Prometric India does not perform any role in negotiations and contracting with APTCs. Conduct computer bases test (CBT) either directly or through franchises for candidates of prometric BV in India. Joint collaboration for the Development and export of computer data (software) and services related with computer software; It also assists its associated enterprise in test delivery (including test centre operation) at any test site, which is located within India and in uploading the test results. 3. The contention of the learned Counsel for the applicant is that their services qualify under the cate....
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....under : - " the activity of remittance of money by a person abroad to his intended beneficiary in India starts at the office of WU or by an agent/sub-agent abroad when he hands over the money to be remitted along with commission and the details of the intended beneficiary in India and after payment of money to be remitted along with commission, he is given a unique code number by the WU/their agents/sub-agent. WU do not have any office or business establishment in India and they operate in India through a network of Agents and sub-agents appointed by agents with the approval of WU. The role of Agents and sub-agents is that when the intended beneficiary approaches them with the code number and provides the prescribed proof of identify, they handover the money remitted by the sender immediately." Thereafter the Tribunal has observed further in para 68 & 69 as under : - "68. Coming to the question of classification of the activity of agents and sub-agents, their activity essentially is providing of service of delivery of money on behalf of WU and also undertaking promotion and marketing of the money transfer service provided by WU. Agents by delivering ....
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....ded beneficiaries of the money sent by persons abroad through WU? ... ... "70.3 But determining the place of consumption is a complex task on account of intangible nature of services and the different modes by which a service can be provided and can be consumed i.e. used by the recipient to satisfy his needs. The place of consumption and the location i.e. permanent address of the service recipient may be different. A uniform criteria for determining the place of consumption/receipt for different categories of services like, services in relation to immovable property, services in relation to business, performance based services, transport services, etc., cannot be adopted. In case of performance based services, there can be cases where part of the service has been performed in India and part has been performed abroad and therefore for such cases there has to be a uniform criteria for determining as to which place should be treated as the place of performance. In case of multi-locational service providers; there must be a uniform criteria for determining as to at which place the multi-locational service provider is to be treated as located for the purp....
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....e of All India Federation of Tax Practitioner's Association (supra). 7. Further, the Tribunal observed as under : - "71. In this case, the service provided by the agents to WU, as discussed in Para 68 above, is "Business Auxiliary Service" covered by Section 65(105)(zzb) read with Section 65(19) of the Finance Act, 1994. Since this service is in relation to the money transfer business of WU having their business establishment abroad and since this service has been received by WU and used by them in their business and payment for this service has been received in convertible foreign currency, in terms of the provisions of Rule 3(1)(iii) read with Rule 3(2) of the Export of Services Rules, 2005, the service provided by the agents has to be treated as export of service. ... ... 72. Next comes the question as to whether the services provided by sub-agents appointed by the agents of WU are export of service and hence not taxable. As held in Para 68 above, the services provided by the sub-agents appointed by the agents is "Business Auxiliary Service" covered by Section 65(105)(zzb) read with Section 65(19) irrespective of whether it ....
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....located abroad intended to import from India. In other words, the clients abroad were desirous of confirming the fact as to whether the goods imported complied with requisite specifications and standards. Thus, client of the respondent located abroad engaged the services of the respondent for inspection and testing the goods. The goods were tested by the respondents in India. The goods were available or their samples were drawn for such testing and analysis in India. However, the report of such tests and analysis was sent abroad. The clients of the respondent were foreign clients, paid the respondent for such services rendered, in foreign convertible currency. It is in that sense that the Tribunal holds that the benefit of the services accrued to the foreign clients outside India. This is termed as 'export of service'. In these circumstances, the Tribunal takes a view that if services were rendered to such foreign clients located abroad, then, the act can be termed as 'export of service'. Such an act does not invite a Service Tax liability. The Tribunal relied upon the circulars issued and prior thereto the view taken by it in the case of KSH International Pvt. Ltd. v. Commissioner....
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....3) of Export of Taxable Service Rules, 2005. Therefore, the appellant are not required to pay service tax during the impugned period for their activity. Accordingly, they are entitled for refund claim. 11. Hence, we set aside the impugned order and allow the refund claims filed by the appellant. 12. The appeal is allowed with consequential relief." 8. In the case of GAP International Sourcing (India) Pvt. Ltd. , wherein this Tribunal has observed as under : 8.3 Though the term 'recipient' in respect of a service is not defined in the Finance Act, 1994 or in the rules made thereunder, the gap has to be filled by construction and on the analogy of the transaction of sale of goods, the service recipient in a transaction of the provision of service, has to be treated as the person - (a) on whose instructions the service has been provided and who is obliged to make payment for the provision of service; and (b) whose need is satisfied by the provision of service - it may be his personal need or the need of his business or need to meet some obligation to some person. Since service....