The Commissioner of Central Excise vs Tech Mahindra Limited

S.C. Dharmadhikari, J.—The Notices of Motion are filed for condonation of delay in filing these Appeals. For the reasons stated in the affidavits in support of these Motions, the delay is condoned. The Notices of Motion are, accordingly, disposed of.

The Appeals are ADMITTED on the following substantial questions of law :-

(a) Whether in the facts and circumstances of the case, the CESTAT was correct in holding that the Assessees satisfy the condition laid down for exports as defined in Rule (3) of the Export of Service Rules, 2005 in respect of onsite services rendered by them abroad for the period from 27.02.2010 onwards?

Having heard Mr.Kantharia at some length and perusing with his assistance the memo of appeal and grounds raised to challenge the impugned order to the extent indicated therein we are of the opinion that five claims which are for the period post 27.02.2010 have been considered in view of the amended provisions. By Notification No. 6/2010-ST dated 27.02.2010, clause (a) of sub-rule (2) of Rule 3 of the Export of Service Rules, 2005 having been omitted the only condition required to be satisfied for terming the taxable service specified in sub-rule (1) as export of service is payment. If the payment for such service is received by the service provider in convertible foreign exchange, then, the refund claims could not have been rejected.

Reliance placed by Mr. Kantharia on the explanation is misplaced because that explanation only explains as to what could be meant by the term "India" for the purpose of the Rule. Beyond that we do not find that there was anything on record which would enable us to hold that Rule 3 was not attracted. If the export of taxable service within the meaning of sub-rule means the specified taxable service provided and all ingredients therefor are satisfied, then, it shall be treated as export of service if payment for the same is received by the service provider in convertible foreign exchange. After the words "payment for such service" appearing in clause (b) of sub-rule (2) of Rule 3, earlier there was another stipulation, namely, "provided outside India". The entire clause (b) was, therefore, reading as "payment for such service provided outside India is received by the service provider in convertible foreign exchange". Now after omission of clause (a) completely even these words, namely, "provided outside India" have been omitted from clause (b). Therefore, clause (b) reads "payment for such service is received by the service provider in convertible foreign exchange".

The Tribunal has concluded in this case that the onsite services rendered by the Appellants abroad would qualify for being termed as export of service. Therefore, the findings of the Tribunal on this point cannot be termed as perverse or vitiated by any error of law apparent on the face of the record. The reasoning in paragraph 5.4 of the impugned order is, therefore, in consonance with the material produced including amendments to the concerned clauses and sub-rules.

For all these reasons, the only question framed cannot be termed as substantial question of law. The Appeals fail and they are dismissed. No order as to costs.