2018 (8) TMI 1342

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....ase are that the appellants are engaged in promoting and selling ZEISS products in India which are medical, microscopy and metrology products. The appellant also undertake the activity of procuring orders in India from buyers and delivering these purchase order to the overseas supplier which order would be processed and then executed by the overseas supplier making the shipment directly to the Indian customers. Consequently, Annual Maintenance Contract or related services for goods sold by the appellant as well as by supplies made directly by foreign suppliers; appellants are also registered in the category of Maintenance and Repair Services, ever since they started the activity of AMC service. With regard to activity pertaining to procurem....

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....e to the extent of service delivered outside India ought to be sanctioned to them; that the orders are delivered abroad and the services of minor installation and support services rendered in India and that these two services are different and cannot be considered as one and as such the benefit of rebate should not be denied to them; that though the services may start in India but are delivered outside India and hence the rejection of rebate is incorrect; that the conditions in terms of Rule 5 of Export of Service Rules, 2005 are fulfilled and as such the rebate be sanctioned; that the tax liability has not been passed on as proved by the certificate submitted by them in the adjudication proceedings and as such the question of unjust enrich....

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.... provides that the payment of such taxable service shall have been received in India in convertible foreign exchange which is not in dispute in the present case. Further Rule 3(2) of Export of Service Rules, 2005 also provides a condition that the service should be provided from India and used outside India. He further submitted that the Government vide Notification No.6/2010-ST dt. 27/02/2010 deleted the requirement in Rule 3(2)(a) of "provided from India and used outside India". Learned counsel further submitted that it is a settled legal position that the activity of Business Auxiliary Service fall under the category of Rule (l)(iii) and as long as it is established that the benefit of the service is accrued to a recipient outside India,....

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....rified the meaning of the phrase "used outside India" which is reproduced herein below:- Sub-rule (1) of rule 3 of the Export of Services Rule, 2005 categorizes the services into three categories: (iii) Category III [Rule 3(1)(iii)]: For the remaining services (that would not fall under category I or II), which would generally include knowledge or technique based services, which are not linked to an identifiable immovable property or whose location of performance cannot be readily identifiable (such as, Banking and Other Financial services, Business Auxiliary services and Telecom services), it has been specified that they would be 'export',- (a) If they are provided in relation to business or commerce to a recipient located....