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2014 (9) TMI 854 - AT - Service TaxDenial of refund claim - Unutilized accumulated CENVAT credit - Held that - Respondent has provided investment advisory service to GPC Management located outside India and does not have any business in India. It is also not in dispute the respondent has received the payment in convertible foreign exchange. - the issue came up before this Tribunal in the case of Paul Merchants Ltd. (2012 (12) TMI 424 - CESTAT, DELHI (LB)) and in that case also this Tribunal has held that if the services recipient is located outside India and the same has been utilized outside India, therefore it is a case of export of service. Further in this case of Vodafone Essar Cellular Ltd 2013 (7) TMI 178 - CESTAT MUMBAI - this Tribunal held that telecom services provided to inbound roaming international consumers would qualify as export of service - Decided against Revenue.
Issues:
1. Delay in filing appeals and Condonation of Delay. 2. Admissibility of refund claim for unutilized accumulated CENVAT credit. 3. Qualification of services provided as export of service. 4. Applicability of CBEC Circular No. 141/10/2011-TRU. Issue 1: Delay in filing appeals and Condonation of Delay: The Revenue filed appeals against the impugned order with applications for stay and Condonation of Delay. The Registry pointed out the need for separate appeals against each order, causing an 83-day delay. The learned A.R. provided satisfactory reasons for the delay, leading to the condonation of the delay and acceptance of the COD applications. Both sides requested final decisions on the appeals and stay applications, which were considered and taken up together for disposal. Issue 2: Admissibility of refund claim for unutilized accumulated CENVAT credit: The respondent, engaged in providing investment advisory services to a foreign service receiver, filed refund claims for unutilized CENVAT credit on service tax paid on input services used for exported output services. The adjudicating authority partly rejected the claim, citing failure to prove the use of input services for output services. The Commissioner (Appeals) later deemed the refund claim admissible. The Revenue appealed the decision, leading to the current case. Issue 3: Qualification of services provided as export of service: The Revenue argued that services provided to a foreign entity were used in India, thus not qualifying as an export of service under CBEC Circular No. 141/10/2011-TRU. The respondent contended that services were provided to a foreign entity outside India, with payments in foreign exchange, making them eligible for refund claims under CENVAT Credit Rules. The Tribunal analyzed past cases and determined that services provided to a foreign entity outside India, with no business in India, qualified as export of service, entitling the respondent to the refund claim. Issue 4: Applicability of CBEC Circular No. 141/10/2011-TRU: The respondent argued that the Circular was not applicable to their case as the refund claim pertained to a period before its issuance. They cited precedents stating that the Circular could not be applied retrospectively to deny refunds. The Tribunal upheld the respondent's position, dismissing the Revenue's appeals and disposing of the stay application accordingly. In summary, the judgment addressed issues of delay in filing appeals, admissibility of refund claims for CENVAT credit, qualification of services as export of service, and the applicability of a relevant circular. The Tribunal upheld the respondent's position, ruling in favor of the admissibility of the refund claim based on the services provided to a foreign entity outside India, leading to the dismissal of the Revenue's appeals.
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