TaxTMI 
TaxTMI 
2024 (4) TMI 290
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....he matter was time barred, the appellate authority has proceeded to decide the matter on merits, which also unfortunately is without any basis in law as the appellate authority has not taken into consideration the judgement of the Bombay High Court in Vodafone Idea Limited v. Commissioner of CGST and Central Excise, Mumbai reported in 2022 SCC OnLine Bom 1485 and the judgment of Delhi High Court in Vodafone Idea Limited v. Union of India and Others reported in 2023 SCC OnLine Del 6673. 5. The Bombay High Court in Vodafone Idea Limited (Supra) has specifically dealt with the issue and come to the following findings :- "19. As per clause (a) of section 2(93) of the CGST Act, "recipient" means where the consideration is payable for supply of goods or services, the person who is liable to pay the consideration. Clauses (b) and (c) of section 2(93) is applicable when no consideration is payable. In this case consideration is payable by the FTO for the services rendered to it. We find the adjudicating authority in his orders does refer to the terms of agreements with FTO. The services are rendered under agreements with the service recipients and according to the agreement, th....
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.... customer. In the case at hand customer of the Vodafone Idea Limited is the FTO and the subscribers of FTO are the customers of FTO. When a service is rendered to a third party customer of FTO - your customer, the service recipient is your customer and not the third party customer of FTO. These issues have been considered by the Central Excise and Service Tax Appellate Tribunal (CESTAT Act), West Zonal Branch, Mumbai and one of Bangalore Tribunal. We accept the views expressed and law laid down by the Tribunals. The relevant portion reads as under : "1. Vodafone Essar Cellular Ltd. v. Commissioner of Central Excise (2013) 31 STR 738 (Trib.-Mum) (paras 5.1, 5.2, 5.3 and 5.4) '5.1. We have perused the agreement entered into between the appellant and the foreign telecom service providers. As per the said agreement, the appellant has agreed to provide telecom services to the customer of the foreign telecom service provider while he is in India using the appellants telecom net work. The consideration for the service rendered is paid by the foreign service provider. There is no contract/agreement between the appellant and the subscriber of the foreign telecom servic....
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....inciple in view, the meaning of the term 'used outside India' has to be understood in the context of the characteristics of a particular category of service as mentioned in sub-rule (1) of rule 3. For example, under Architect service (a category I service (rule 3(1)(i))), even if an Indian architect prepares a design sitting in India for a property located in U. K. and hands it over to the owner of such property having his business and residence in India, it would have to be presumed that service has been used outside India. Similarly, if an Indian event manager (a category II service (rule 3(1) (ii))) arranges a seminar for an Indian company in U. K., the service has to be treated have been used outside India because the place of performance is U. K. even though the benefit of such a seminar may flow back to the employee serving the company in India. For the services that fall under Category III (rule 3(1)(iii)), the relevant factor is the location of the service provider and not the place of performance. In this context, the phrase 'used outside India' is to be interpreted to mean that the benefit of the service accrues outside India. Thus for category III service....
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....) 31 STR 738 wherein it was held that the telecom service provided in India to international inbound roamers registered with foreign telecom network operator, payment received from impugned foreign telecom operators in convertible foreign exchange, in that set of facts this Tribunal has held that the service have been provided outside India as an export of service. In this case, the respondent is in a better footing that in the case of Vodafone Essar Cellular Ltd. (2013) 31 STR 738 wherein it was held that the service recipient is the foreign telecom service-provider and not the subscriber of the foreign telecom service in India and providing service in India and it is a case of export of service. In the circumstances, I hold that the learned Commissioner (Appeals) has rightly held that the case of export of service as per rule 3(1)(iii) of the Export of Services Rules, 2005. In the circumstances, I do not find any infirmity with the impugned order and the same is upheld. The appeal filed by the Revenue is dismissed. 3. ABS India Ltd. v Commissioner of Service Tax (2009) 13 STR 65 (Trib.- Bang) (para 4) The appellant is a company incorporated in India. They have a....