2015 (11) TMI 218 - AT - Service Tax

Denial of refund claim - unutilized accumulated Cenvat credit - various input services used for export of services - Rule 5 of Cenvat Credit Rules, 2004 read with Notification 5/2006 CE(N.T.) dated 14/3/2006 - Held that - The Appellants have claimed the refund of the untilized Cenvat credit earned on account of payment of Service tax on various input services such as, support service of business of commerce, Telecommunication service, renting of immovable property, manpower recruitment sercie, management, maintenance and repair service, air travel service, management of business consultant service, courier services and rent-a-cab service, house keeping/cleaning Services, pest control etc. These input services appeared to have been used for providing output service exported. In order to zero rate the exports, Rule 5 of Cenvat Credit Rules, 2004 provides that such accumulated credit can be refunded to the exporter subject to fulfillment of the stipulated conditions. Notifications No. 5/2006-CE(N.T.) dated 14/3/2006 provides the conditions, safeguards and limitation for obtaining refund of such credit. In view of the above, the contention of the adjudicating authority that the said advisory services i.e. Banking & Other Financial Services are used in India and as such the benefit of these services is accruing in India and not outside India does not appear to be correct and it is not tenable. - refund allowed - Decided in favour of Assessee.

Summary

Issues:
Refund claims under Cenvat Credit Rules for unutilized accumulated credit on services exported, rejection of refund claims by adjudicating authority, appeal allowed by Commissioner, Revenue's appeal against Commissioner's order.

Analysis:
The case involved refund claims totaling Rs. 28,04,138 filed by respondents for unutilized Cenvat credit earned on services used for output services exported from October 2007 to December 2008. The adjudicating authority rejected the claims, stating services provided were not covered under export of services. However, the Commissioner allowed the appeals, setting aside the original order. Revenue filed appeals against this decision.

During the hearing, the Revenue argued that services were provided in India to a US company, hence not exported. They claimed the output services were not exported, so the appeal should be dismissed. The respondent did not appear, leading to the case being decided on merits.

The Tribunal found that although services were provided in India, they were received by a foreign company in the USA and paid for in convertible foreign exchange. This met the conditions for services to be treated as exported. The Commissioner's findings supported the refund claims, stating that the services provided were in relation to business or commerce to a recipient outside India, fulfilling the conditions for export of services.

The Tribunal referred to CBEC Circulars clarifying that services provided in relation to business or commerce to a recipient outside India qualify as exports, regardless of the place of performance. The benefit of the services accruing outside India is essential for such exports. The Tribunal held that the adjudicating authority's rejection of the refund claims was incorrect and not sustainable. The appeals were allowed, and the refund claims were deemed allowable under the relevant Notifications and Rules.

The Tribunal upheld the Commissioner's decision, dismissing the Revenue's appeals and granting all consequential reliefs to the appellants. The impugned order was deemed just and proper, leading to the dismissal of Revenue's appeals and the disposal of stay applications accordingly.