2019 (11) TMI 1459 - AT - Service Tax

Refund of unutilized Cenvat credit - rejection on the ground that the services provided by the appellant during the disputed period did not qualify as export - period April to September 2009 and October 2009 to March 2010 - Circular No. 141/10/2011-TRU dated 13.05.2011 - HELD THAT - It is an admitted fact on record that the appellant had provided the services to the overseas entities as per the contractual norms and consideration for such services was received in convertible foreign exchange. However, upon receipt of such services from the appellant, the service recipient located abroad had provided such services and issued the invoices to its clients located within the country - The dispute with regard to the issue of applicability of the provisions of the export of services, under such circumstances was dealt with by the CBEC vide Circular dated 24.02.2009, wherein with regard to category -III service under Rule 3(1)(iii) ibid, it has been clarified that banking and other financial services should be classified under the said rule for the purpose of consideration as export. The reliance place by the authorities below on the Circular dated 13.05.2011 is not applicable to the case in hand inasmuch as the period in dispute is prior to March 2010 and the Circular was issued much after the date of performance of actual service by the appellant. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Refund of unutilized Cenvat credit balance for input services under banking and financial services category - Qualification of services as export under Export of Services Rules, 2005 - Applicability of Circulars dated 13.05.2011 and 24.02.2009 - Dispute regarding location of service receiver and place of service performance.

Analysis:
The appeal pertains to the rejection of refund applications by the original authority concerning unutilized Cenvat credit balance for input services provided by the appellant under the banking and financial services category. The appellant contended that the services qualified as export under the Export of Services Rules, 2005, despite being performed within India for overseas service recipients. The appellant argued that Circular dated 24.02.2009 classified banking and financial services as export under Rule 3(1)(iii) for refund purposes, contrary to Circular dated 13.05.2011 relied upon by the authorities. The Tribunal noted that services provided by the appellant were to overseas entities, with consideration received in foreign exchange. The CBEC Circular clarified that services falling under Category III should be based on the location of the service receiver, not the place of performance, and benefit accrual outside India. The Tribunal referenced previous decisions supporting the export classification of services even if performed within India for foreign service recipients.

The Tribunal found the Circular dated 13.05.2011 inapplicable to the case due to the dispute period predating March 2010 and the Circular's issuance post-service performance. Relying on precedents and the Circular dated 24.02.2009, the Tribunal concluded that the services provided by the appellant qualified as export under the Export of Services Rules, 2005. The Tribunal overturned the impugned order, allowing the appeals in favor of the appellant. The judgment emphasized the importance of the location of the service receiver and benefit accrual outside India in determining the export classification of services, particularly in the banking and financial services sector.