SIMPRA AGENCIES Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE facts giving rise to these appeals are, in brief, as under: -

(2.) SHRI A.K. Batra, CA & Shri Agrish Bhasin, Advocate, ld. Counsels for the appellants, pleaded that the service of procuring supply orders for their foreign clients - M/s. Secheron SA, Switzerland and M/s. Gimota AG, Switzerland are Business Auxiliary Services covered by Section 65(105)(zzb) read with Section 65(19) of the Finance Act, 1994, that other activity of the appellants providing of after -sale services, testing, commissioning, installation services, etc. on behalf of their two foreign clients is also covered Business Auxiliary Service as it is provision of service on behalf of clients, that the nature of the activity of the appellants is clear from their agreements with their clients i.e. M/s. Secheron SA, Switzerland and M/s. Gimota AG, Switzerland, that it is the clients of the appellants located at abroad, who are the recipient of the services covered under the Business Auxiliary Service and since the payment was received in convertible foreign currency, in terms of Rule 3(1)(iii) of Export of Services Rules, 2005 read with Rule 3(2) ibid, the services have to be treated as export of service, that the issue involved in this case is covered in favour of the appellant by the judgments of the Tribunal in the case of Paul Merchants Ltd. v. CCE, Chandigarh reported in : 2013 (29) S.T.R. 257 (Tribunal -Delhi) and also GAP International Sourcing (India) Pvt. Ltd. v. CST, Delhi reported in : 2009 (15) S.T.R. 270 (Tribunal -Delhi), that since the service provided is export of service and payment for the service received in convertible foreign exchange, the appellant are eligible for rebate of the service tax paid on the same in terms of the Rule 5 of the Export of Service Rules, 2005 and that the Commissioner's finding that the service provided by them are not export of service are not correct. He, therefore, pleaded that the impugned order is not correct.

(3.) WE have considered the submissions from both the sides and perused the records. In both the cases, the rebate claims under Notification No. issued under Rule 5 of the Export of Services Rule, 2005 have been rejected. In both the cases, though in course of proceedings before the Commissioner (Appeals), the agreements of the appellants with their foreign clients had been produced, the finding of the Commissioner (Appeals) is that the service rendered cannot be classified as Business Auxiliary Service and also the same cannot be treated as Export of Service. On going through the agreements of the appellants with their foreign clients, M/s. Secheron SA, Switzerland and M/s. Gimota AG, Switzerland, we find that function of the appellant is promoting the sales of their client's products in India, conducting market survey and, if required, conducting inquiries with regard to solvency and reliability of the clients and besides this, they are also required to provide after -sale warranty service in testing, etc. on behalf of their foreign clients to the buyers in India. These services are covered by the definition of Business Auxiliary Service as given in Section 65(105)(zzb) read with Section 65(19) and since, in view of the judgments of the Tribunal in case of Paul Merchants Ltd. v. CCE, Chandigarh reported in : 2013 (29) S.T.R. 257 (Tribunal -Delhi) and GAP International Sourcing (India) Pvt. Ltd. v. CST, Delhi reported in : 2009 (15) S.T.R. 270 (Tribunal -Delhi), the services provided by the Appellants have to be treated as export of service, the appellant would be entitled for rebate of service tax paid on the same in terms of notification No. issued under Rule 5 of the Export of Services Rules, if the procedure prescribed in this notification has been followed and the conditions prescribed therein are fulfilled. The Assistant Commissioner has not gone into this aspect. In view of this, the impugned orders are set aside and the matters are remanded to the original adjudicating authority for examining the rebate claims in terms of the notification No. issued under Rule 5 of the Export of Services Rules.