TaxTMI 
TaxTMI 
2026 (4) TMI 1434
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....7-12 dt.15.03.2012 vide Appeal No. ST/1660/2012 and against OIO No. VIZ-STX-001-COM-046-12 dt.15.03.2012, vide Appeal No. ST/1661/2012. Similarly, M/s Actimus Bio-Sciences Pvt Ltd (hereinafter referred to as Respondent) has also come in appeal against OIO No. VIZSTX-001-COM-046-12 dt.15.03.2012, vide Appeal No. ST/1798/2012. 2. Department is in appeal against the order passed by the adjudicating authority, wherein, the classification of service provided to both domestic as well as international clients by the respondent, has been upheld as 'Technical Testing and Analysis Service' (TTAS) under Sec. 65(105)(zzh). The respondents are in appeal against the same OIO, whereby, they have not been granted the benefit of cum-duty while computing ....
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.... export of service and therefore, not leviable to service tax. Adjudicating authority has relied on the judgment in the case of BA Research India Ltd [2010 (18) STR 604 (Tri-Ahmd)] by the Ahmedabad Bench, which has been further upheld by Hon'ble High Court of Gujarat as reported in [2013 (31) STR 663 (Guj)] in support that such delivery of report, outside India, constitutes part performance. 5. Per contra, learned AR pointed out that after amendment in 2008, whereby, further proviso was added, the goods are supposed to be abroad and services are to be provided from India, then only it will be treated as export of service and in this case, admittedly, the goods have been received from abroad on which certain activities, etc., have been pe....
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....uty benefit is concerned, respondents have not claimed this benefit before the lower authority. 8. Heard both sides and perused the records. Appeal No. ST/1660 & 1661/2012: 9. We find that insofar as the departmental appeals are concerned, they have mainly challenged that demand to the extent dropped in the impugned orders is not correct as in terms of Export of Service Rules, 2005, no performance or even part performance has taken place outside India and therefore, the same cannot be treated as export of service. We find that the respondents are engaged in conducting certain BE/ BA studies for developing critical component for drug formulations, etc., as per the orders placed on them by customers/ clients located outside India. Ap....
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.... levy. Therefore, essentially, what they have contested is that in an admitted position, where it is not in dispute that delivery of final reports has been made to the foreign entity and it has been considered outside India, there is part performance, which has occurred outside India and therefore, it has to be treated as export of service in terms of provisions under Rule 3(1)(ii) of Export of Service Rules, 2005, and since their service is falling under TTAS, therefore, it would fall under Rule 3(1(ii). We also note that this issue has been discussed in detail by the Tribunal in the case of BA Research India Ltd (supra), which was later on affirmed by the Hon'ble Gujarat High Court, wherein, it has been held that delivery of clinical tria....
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....s, while various research activities are carried out as per the work requirement in India, they are bound to provide the deliverables to clients, which require them to submit various outcome reports, samples and other related documents to the foreign entity outside India and therefore, delivery of the deliverable activities outside India is an integrated part of the overall work order given by the foreign entity to them. Therefore, we find merit in the submissions made by the respondent that issue is no longer res integra in terms of various judgments cited by them in support that if there is a part performance outside India, then in terms of Export of Service Rules, it has to be deemed to be export of service. 12. We also note that inso....
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....t be proportionate reduction in the mandatory penalty. Therefore, to that extent, the impugned orders are not correct and accordingly, the mater is required to be remanded back for limited issue of re-computation of the penalty amount. 14. Appeals filed by the Department are allowed partly. Appeal No. ST/1798/2012: 15. In this appeal, the issue is regarding allowing the cum-duty benefit while confirming the demand. We find that the adjudicating authority has not allowed the said benefit, however, in the absence of any supporting document, the matter is required to be remanded back to the Original Adjudicating Authority to consider the submissions of the appellant for allowing the cum-duty benefit in respect of demand confirmed vide....