TaxTMI 
TaxTMI 
2026 (8) TMI 1801
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....l as detailed below:- S. No. Order-in-Original No. & date Refund amount rejected (in Rs.) 1. 2210 R(KHA)/10-11 dated 26.10.2010 2,57,693 2. 2213 R(KHA)/10-11 dated 26.10.2010 8,36,973 3. 2211 R(KHA)/10-11 dated 26.10.2010 42,00,478 4. 2212 R(KHA)/10-11 dated 26.10.2010 14,40,421 2.1 The appellant is registered with the Service Tax Department for providing taxable services. They have filed four refund claims claiming refund in terms of Rule 5 of the Cenvat Credit Rules, 2004 for the period and the amount detailed in table below:- S. No. Refund claim date Period Amount (in Rs.) 1. 31.03.2009 October 2008 to March 2009 8,36,973 2. 24.09.2009 October 2008 to March 2009 42,00,478 3. 31.03.2009 April 2008 to September 2008 14,40,421 4. 31.03.2009 April 2008 to September 2008 2,57,693 2.2 In the refund claims were filed by the appellant they have claimed that they had exported certain output services to its affiliate eBay International AG (eBay AG) and as these were the services exported and they were not in a position to utilize the CENVAT credit availed/accumulated on account o....
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.... 24.02.2009. As the services provided by them, as per the Board circular, are in the category of export of services, the refund claims could not have been rejected for this reason. 3.3 Arguing for the Revenue, learned Authorized Representative submits that the appellant had entered into service agreement with eBay AG for providing the following services:- ⮚ Co-ordinate promotion with vendors for marketing and promotion. ⮚ Co-ordinate with vendors in India with whom eBay International AG proposes to contract and also review the agreements from a commercial and tax perspective before they are sent to eBay AG for final approval and signatures. ⮚ Complete the CAS (Contract Authorization Sheet) & FAP (Financial Authorization Policy) checklists (provided by eBay G) in respect of each agreement before these can be sent to eBay AG for final approval and signature. ⮚ Provision of market data relating to the local committee Industry to eBay. ⮚ Collection and remittance of revenue pertaining to eBay AG's business and ⮚ Operating a helpdesk which attends to queries of eBay AG's customers. ....
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....receives commission for his services from foreign seller in convertible foreign exchange; (iv) Foreign financial institution desiring transfer of remittances to India, engaging an Indian organisation to dispatch such remittances to the receiver in India. For this, the foreign financial institution pays commission to the Indian organisation in foreign exchange for the entire activity being undertaken in India. The departmental officers seem to have taken a view in such cases that since the activities pertaining to provision of service are undertaken in India, it cannot be said that the use of the service has been outside India. 2. The matter has been examined. Sub-rule (1) of rule 3 of the Export of Services Rule, 2005 categorizes the services into three categories: (i) Category I [Rule 3(1)(i)]: For services (such as Architect service, General Insurance service, Construction service, Site Preparation service) that have some nexus with immovable property, it is provided that the provision of such service would be 'export' if they are provided in relation to an immovable property situated outside India. (ii) Category II [Rule 3(1)(....
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.... to be interpreted to mean that the benefit of the service should accrue outside India. Thus, for Category III services [Rule 3(1)(iii)], 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. In all the illustrations mentioned in the opening paragraph, what is accruing outside India is the benefit in terms of promotion of business of a foreign company. Similar would be the treatment for other Category III [Rule 3(1)(iii)] services as well. 4. All pending cases may be disposed of accordingly. In case any difficulty is faced in implementing these instructions, the same may be brought to the notice of the undersigned. These instructions should be given wide publicity among trade and field officers. 11. The CBEC, in Para 2 (iii) of the Circular, has clarified that "For the remaining services (that would not fall under category I or II, which would generally include knowledge or technique based services, which are not linked to an identifiable immovable property or whose location of performance cannot be readily identifiable (such as, Banking and Oth....
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.... paid from one place and actually used at another place. Such arrangements commonly exist where the services are procured centrally eg audit, advertisement, consultancy, Business Auxiliary Services. For example, it is possible to obtain a consultancy report from a service provider in India, which may be used either at the location of the customer or in any other place outside India or even in India. In a situation where the consultancy, though paid by a client located outside India, is actually used in respect of a project or an activity in India the service cannot be said to be used outside India. 3. It may be noted that the words "accrual of benefit" are not restricted to mere impact on the bottom-line of the person who pays for the service. If that were the intention it would render the requirement of services being used outside India during the period prior to 28.2.2010 infructuous. These words should be given a harmonious interpretation keeping in view that during the period upto 27.2.2010 the explicit condition was provided in the rule that the service should be used outside India. In other words, these words may be interpreted in the context where the effective use ....
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.... the evidences on web world that respective countries have got separate websites like ebay.uk, ebay.com, etc. No sale or buying activities taking place elsewhere in the world are being catered or serviced by the website www.ebay.inand by the appellant in this case, at least no such evidence has been produced by the appellant to the-contrary. I have gone through the sample copies of invoices submitted by the appellant, and find that the same indicates the description of services as "cost + April 2008", "cost+ May 2008" etc. which do not throw any light on the exact nature of the services provided to eBay AG by the appellant. Hence, it is convenient to infer that the activities of buying and selling of any products through www.ebay.inhad taken place in India, and also the services have been provided by the appellants to eBay AG in relation to the activities in India. This is also supported from the agreement copy which restricts the operation at the hands of the appellants within the territory of the service provider (appellants) i.e. India. Though the benefits of the activities rendered by the appellant could possibly enhances the business and sale/purchase of goods through the webs....
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.... consultancy service provided by a service provider in India, and clarified that in a situation where the service, in respect of a project or an activity in India the service cannot be said to be used outside India. Similarly, in case of advertising service, circular of 2011 has clarified that effective use of advertising services shall be the place where the advertising material is disseminated to the audience though actually the benefit may finally accrue to the buyer who is located at another place. 16. In the instant case, as discussed above, the sale and purchase of goods are taking place in India through website only available in India; the sales orders are procured in India; promotion and marketing of the services provided by eBay AG are done by the appellant in the territory of India; coordinating promotions with vendors for marketing and promotional services, etc are also being performed in India as per the agreement. Taking the clue from the circular dated 13.05.2011, 1 have no hesitation to hold that all activities extended by the appellant to the foreign subsidiary are taking place in India, may it be, either marketing research, consultancy or promotion of sale....
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....ead as Euclid's theorems not as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgment of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgment. They interpret words of statutes: their words are not to be interpreted as statutes." "Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive." "Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you wil....
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.... Service Tax of Rs 1,32,57,559/- (Rupees One Crore Thirty-Two Lakhs Fifty-Seven Thousand Five Hundred and Fifty-Nine only) and order its recovery from M/s Croda Chemicals (India) Private Limited under the provisions of Section 73(2) of the Finance Act, 1994 for the reasons discussed above. 4.2 I order recovery of interest at appropriate rate from the due date till the date of payment, on the amount of demand confirmed at Para 4.1 above, from M/s Croda Chemicals (India) Private Limited under the provisions of Section 75 of the Finance Act, 1994. 4.3 I impose a penalty of Rs 1,32,57,559/- (Rupees One Crore Thirty-Two Lakhs Fifty-Seven Thousand Five Hundred and Fifty-Nine only) on M/s Croda Chemicals (India) Private Limited under the provisions of Section 78 of the Finance Act, 1994. 4.4 I impose a penalty of Rs 10,000/- (Rupees Ten Thousand only) under Section 77 of the Finance Act, 1994 on M/s Croda Chemicals (India) Private Limited." 4.4 In the present case where the Revenue authorities concluded that the services provided were not export of services, they were provided within taxable territory in India . The impugned order also records the findings th....
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.... accepted legal principle that the law has to be read harmoniously so as to avoid contradictions within a legislation. Keeping this principle 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 to 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 employees 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 receiver and not the place of performance. In this context, the phrase 'used outs....