TaxTMI 
TaxTMI 
2025 (9) TMI 751
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....gues. The Respondent M/s Albany Molecular Research Hyderabad Research Centre (P) Ltd., (hereinafter referred to as respondent) has classified the said service under the Scientific & Technical Consultancy (STC) Service, falling under Section 65(105)(za), whereas, the Department felt that it is more amply classifiable under Technical Testing and Analysis (TTA) Service under Section 65(105)(zzh) of the Finance Act 1994. The Department, after going through the activities being performed by the respondent, felt that said service of TTA provided by them during the period July 2012 to March 2014 would not be eligible for exemption as export of service in terms of Rule 4(a) of Place of Provision of Service Rules 2012 (POPS Rules), since the services were provided in India only. It was also alleged that though there is no classification required post 01.07.2012 and all services are taxable unless specifically covered under the negative list or otherwise exempted, however, as the respondent continued to provide the impugned service related to TTA service, it would be covered within the category of service and would also not be eligible as export. 3. On adjudicating, the Commissioner after....
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....quired to be decided is whether the imported raw materials used by the assesse to provide the services were provided by the service recipient or through agent and the applicability of Rule 4 of POPS Rules 2012. e) that the examination of purchase orders submitted by the respondent, as held at para 14 of the impugned order, clearly reveals that some of the orders related in the order do not pertain to the period under consideration and that some of the orders clearly indicate the requirement of the uses of appropriate materials sent by the clients and therefore the documents submitted by the respondent do not support the case of their having not used the supply of materials by clients that the documents examined by the appellant would indicate that there has been supply of proprietary material for use in testing and analysis. f) that the reliance placed by the Adjudicating Authority on warehousing register to support the contention that the respondent did not receive raw material from Kyowa Hakko Kirin Company Ltd., is erroneous as the said register contains only the raw materials which are imported duty free and the raw materials which are imported on payment of d....
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....sor which was consumed at the molecular level itself. Therefore, it cannot be said that testing was done on said material. 7. The respondent is also submitting that the issue is essentially that of interpretation and therefore allegation of suppression with an intent to evade payment of tax would not arise. He is also submitting that the respondent is eligible for cum tax benefit in terms of Section 67(2) of the Finance Act 1994. He is relying on the judgment of Hon'ble Supreme Court in the case of Commissioner Vs Advantage Media Consultants [2009 (14) STR J49 (SC)]. 8. Heard both the sides and perused the records. 9. The issue, which is required to be addressed in the present appeal, is whether the Adjudicating Authority was correct in dropping the demand by treating the service provided to the foreign client/recipient as export of service or otherwise. We find that though in the grounds taken by the Department, a great deal of discussions have gone into the fact that the present appeal is concerned with the show cause notice, which was essentially a periodical one and therefore the earlier show cause notice dated 26.06.2013 has to be read together for better appreciation....
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....wing services shall be the location where the services are actually performed, namely: (a) Services provided in respect of goods that are required to be made physically available by the recipient of service to the service provider, or to a person acting on behalf of the provider of service, in order to provide the service: Provided that when such services are provided from a remote location by way of electronic means, the place of provision shall be the location where the goods are situated at the time of provision of service: Provided further that this sub-rule shall not apply in the case of a service provided in respect of goods that are temporarily imported into India for repairs, reconditioning or re-engineering for re- export, subject to conditions as may be specified in this regard. (b) Services provided to an individual, represented either recipient of service or a person acting on behalf of recipient, which requires the physical presence of receiver or the person acting on behalf of the receiver, with the provider for the provision of the service. " 11. A plain reading of this provision would indicate that the place of provision will b....
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.... clearly provides for treating certain provision of service as export, subject to fulfilment of certain conditions including, inter alia, the place of provision of service is outside India. Therefore, to treat a service as an export, there is a requirement for determining the place of provision of service in terms of POPS Rules. Once, it is decided that the place of provision is outside India, then subject to fulfilment of other conditions, it will be treated as export. In any case, the other conditions have not been disputed. Therefore, essentially it again brings us back to decide, whether in this case, Rule 4 of POPS rules will be applicable or Rule 3 of the POPS Rules will be applicable as discussed supra. In order to invoke Rule 4(a), there is a requirement for providing the goods physically by the recipient of service to the provider of service. Based on various documents etc., the Adjudicating Authority felt that no materials were provided physically to the service provider in this case. However, we find that going by the documents and also the grounds taken by the Department, the issue whether the materials were actually received from the service recipient or otherwise has ....