TaxTMI 
TaxTMI 
2022 (4) TMI 137
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....drugs or formulation after conducting further research and development. Based on the service agreements entered into with the clients of the appellant, the clients issue statements of work (SOW) describing specific services needed from the appellant. Bases on the SOW, the appellant determines the criterion of procuring the samples i.e. age, gender, disease or disorder and the source to procure the samples from i.e. hospitals, research centers, etc. These samples are drawn as per specific requirements of testing or analysis as per the SOW received from the clients. The samples are not provided by the clients of the appellant nor do they belong to the clients nor are they returned to the clients. The appellant procures the said samples for the purpose of tests and analysis from certain hospitals and research centers. These institutes charge certain amount from the appellant towards the cost of testing and drawing of these samples. The amount paid to the institutes is not for purchase of samples but the amount paid is only towards reimbursement of service cost for drawing of samples. After the samples are drawn, the DNA/RNA may also be extracted by the appellant or is done by the inst....
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....s get substantially consumed or extinguished and thus, the services are not in respect of goods. Remains of samples are destroyed by the appellant-assessee as bio-medical waste. The samples collected for the purpose of analysis is not goods. Under Section 2(50) of the Finance Act, 1994, the term 'goods' has the meaning assigned to it in clause (7) of Section 2 of the Sale of Goods Act, 1930. The said section defines 'goods' to mean every kind of moveable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale. He submits that by no stretch of imagination, the samples of blood or tissues can be called as moveable property or satisfying any other description in the definition of the term goods as mentioned above. The samples are not marketable or saleable and in fact not marketed or bought or sold and therefore they don't satisfy the test of qualifying to be 'goods'. He further submits that in the present case, the samples are not made available by the recipient of the services to the appellant and are procured by th....
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....bmits that the assessee-appellant has been filing service tax returns disclosing export turnover which is presently in dispute; in fact the appellant had also filed refund claim for the period October, 2014 to December 2014 on 16/10/2015, in which the disputed transactions were declared as export, which was later on withdrawn. Thus, the Department was aware of the export claim of the assessee-appellant since beginning. In view of these facts, demand of extended period and imposition of 100% penalty is not sustainable. Learned counsel prays for allowing the appeal filed by the assessee-appellant. 3. On the other hand, Smt. D.S. Sangeetha, learned Additional Commissioner(AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. She submits that since the testing was carried on the samples viz. blood, tissues etc., it cannot be said that the service was not provided in respect of goods; therefore, the assessee's service cannot fall under the category of 'export of service' and hence the same is taxable. 4.1. We have carefully considered the submissions and perused the records. The issue to be decided in the present case is that whether the service provide....
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....shall be the location where goods are situated at the time of provision of service: Provided further that this clause shall not apply in the case of a service provided in respect of goods that are temporarily imported into India for repairs and are exported after the repairs without being put to any use in the taxable territory, other than that which is required for such repair. (b) services provided to an individual, represented either as the recipient of service or a person acting on behalf of the recipient, which require the physical presence of the receiver or the person acting on behalf of the receiver, with the provider for the provision of the service. As per Rule 3 of POPS Rules, the place of provision of service shall be the location of the recipient of service. In the present case, the location of the recipient of service is in abroad. Therefore, the service deemed to have been provided in abroad at the place of service recipient. In exception to the above Rule 3, the place of provision of service on the basis of performance is provided under Rule 4; according to which, if the services are provided in respect of goods that are required to be made physically available....