TaxTMI 
TaxTMI 
2019 (11) TMI 184
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....service are subscribers of foreign based telecommunication service provider. As regards the service, there is contract of the appellant with such foreign based telecommunication service provider and against the roaming service provided by the appellant and used by the international roamer in India, the payment is received by the appellant from the foreign based telecommunication service provider therefore, the service recipient is located outside India and the service was provided by the appellant to such service recipient and the payment is also received in convertible foreign exchange. Therefore, such service is export of service and the appellant is entitled for rebate. This issue has been considered in the various judgments of appellant's group companies and also in other judgments. He placed reliance on the following judgments:- (a) Vodafone Essar Cellular Limited vs. CCE - 2013 (31) STR 738 (b) Vodafone Cellular Limited vs. CGST - 2019 (25) GSTL 557 (c) Vodafone Cellular Limited vs. CCE - 2014 (34) STR 890 (d) CST vs. Vodafone Indian Limited - 2015 (37) STR 286 (e) Vodafone Essar Gujarat/ Vodafone West Limited - 2015-TIOL-2100-CEST....
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....eign 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 friend for which you make the payment, as far as the florist is concerned you are the customer and not your friend. 5.2 Export of Service Rules, 2005 defines export in respect of taxable services. For this purpose, the services have been categorized into 3. Category I deals with specified services provided in relation to an immovable property situated in India. Category II deals with specified taxable services where such ta....
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....at 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 the telecom services including service tax, even though the service is rendered abroad by the foreign telecom service provider as per the agreement with MTNL/BSNL. 5.4 The Paul Merchant's case (supra) relied upon by the appellant dealt with an identical case. The question before the Tribunal in that case was when Agents/Sub-agents in India of Western Union Financial Services, Panama, makes payments to a....
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....l inbound roamer. In case of any difficulty faced by the international inbound roamer he would call the customer care of the foreign telecom company to which he is a subscriber. Thus, as per the agreement, the appellant agrees to provide service to the foreign telecom company and therefore such foreign telecom company is the service recipient. 5.2 Since the service recipient is located outside India, as per Rule 3(iii) of Export of Services Rules, the said services would amount to export of service for the period prior to 1-7-2012. For the period after 1-7-2012, the Place of Provision of Services Rules, 2012 came to be introduced and as per Rule 3 of such Rules, the location of the service recipient has to be taken into account for deciding as to where the services have been provided. So for the entire period of dispute, since the service recipient is outside India, the same amounts to export of services. 5.3 In drawing such conclusion, we are assisted by the Master Circular dated 23-8-2007 issued by the department. It may be correct that in Circular No. 90/1/2007-S.T., dated 3-1-2007 such services of providing international inbound roaming facility has been clari....
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....ephone service to an international inbound roamer. This service to an inbound roamer is delivered and consumed in India and, therefore, is not an export of service." 43. The said Circular dated 3rd January, 2017 did not deal with telecommunication services involving transfer of electronic data. Then came the Circular No. 96/7/2007-S.T., dated 23rd August, 2007. This was on the basis of the report of the Committee chaired by Shri T.R. Rustagi, former Commissioner of Customs & Central Excise and Director General (Inspection). On the basis of comments received, the C.B.E. & C. issued the above circular. Paragraph 6 of the said circular reads thus : "6. This circular supersedes all circulars, clarifications and communications, other than Orders issued under Section 37B of the Central Excise Act, 1944 (as made applicable to service tax by Section 83 of the Finance Act, 1994), issued from time to time by the C.B.E. & C., DG (Service Tax) and various field formations on all technical issues including the scope and classification of taxable services, valuation of taxable services, export of services, services received from outside India, scope of exemptions and all other ....
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.... that when the appellant had paid service tax and filed refund claims on the very same services, the department has granted refund holding the services as export of services. The department has granted refund upto the period 31-3-2011. The department therefore cannot contend that the services are not export of services for the period from 1-4-2011 to 30-6-2012 and 1-10-2013 to 30-9-2014 which is the disputed periods in these appeals. 6. From the foregoing discussions, we are of the considered opinion that the services are not exigible to service tax being export of service. The impugned orders are set aside and the appeals are allowed with consequential relief, if any, as per law. Vodafone Cellular Limited vs. CCE - 2014 (34) STR 890 5.1 As regards the merits of the case, this Tribunal in appellant's own case, vide order dated 12-3-2013 has held that the activity of providing international roaming facility to inbound travellers in India is a service provided to the foreign telecom service provider who is located outside India and, therefore, transaction constitutes export of services. This decision has been rendered after considering the provisions of Exp....
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....ertaining to the period April, 2007 to April, 2009 and verify whether the refund claims have been filed beyond the period of one year from the date of payment of Service Tax and if so, the appellant would not be entitled for any refund at all. Thus, in respect of the seven claims pertaining to the period April, 2007 and April, 2009, the matter is remanded back to the adjudicating authority for the limited purpose of verification as to whether the claims are time-barred or not. As regards the balance two claims, the appellant is entitled for the same as time-bar issue is not attracted in these cases and the unjust enrichment principles also would not apply as the services rendered would amount to export of services. 6. The appeals are disposed of in the above terms. 6. From the above judgments, it can be seen that identical issue has been considered and it was held that service in question is export of service. The issue of unjust-enrichment was also considered in the above judgments on which it was held that in case of export of service, provisions of unjust-enrichment is not applicable. Therefore, the appellant is entitled for the refund on both the counts i.e. on meri....