2019 (7) TMI 916 - AT - Service Tax

Rebate claim - export of services - denied on the ground that the activity involves rendering of services within India and, hence, not covered within the scope of Export of Service Rules, 2005 - scope of SCN - HELD THAT - In so doing and rendering a finding that the activity of the appellant does not constitute exports, the adjudicating authority has, doubtlessly, travelled beyond the scope of the show-cause notice. The appellant has not been placed on notice of the intent of the service tax authorities to reject their claim for rebate on the ground of exports not having taken place and that the services have been rendered within the country. It may not be out of place to take notice that, even considering that the issue could be decided on merit, the supply had been effected to a Special Economic Zone and a recipient operating, or in, a Special Economic Zone is entitled to tax exemption that devolves upon the provider. In any case, the appellant was entitle to the refund/rebate of the taxes paid on the services. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Entitlement to rebate on exports of services under notification no.11/2005-T dated 19th April 2005
- Determination of whether the services rendered constitute exports under Export of Service Rules, 2005
- Scope of show-cause notice and adjudicating authority's findings

Analysis:

Issue 1: Entitlement to rebate on exports of services under notification no.11/2005-T dated 19th April 2005
The appellant claimed a rebate on exports of services provided to M/s Applied Materials Inc., USA. The original authority rejected the rebate claim, stating that the services were not covered within the scope of Export of Service Rules, 2005. The appellant had undertaken the work of erecting plants supplied by M/s Applied Materials Inc. USA at a customer's facility in a Special Economic Zone. The lower authority held that since the recipient entity was based in India, the service was performed in India, leading to the rejection of the appeal.

Issue 2: Determination of whether the services rendered constitute exports under Export of Service Rules, 2005
The impugned order upheld the original authority's decision, stating that the services provided by the appellant, such as technical product services, engineering services, and application services, were rendered in India and used in India. The order highlighted that as per Rule 3 of Export Rules, 2005, services provided to a recipient located in India and used in India do not qualify as exports. Therefore, the service tax paid was deemed ineligible for rebate, leading to the rejection of the refund claim.

Issue 3: Scope of show-cause notice and adjudicating authority's findings
The Tribunal noted that the adjudicating authority had gone beyond the scope of the show-cause notice by determining that the appellant's activity did not constitute exports. The appellant was not given notice of the intention to reject their rebate claim on the grounds of services being rendered within the country. Additionally, even if the issue could be decided on merit, considering the supply was made to a Special Economic Zone, the appellant was entitled to tax exemption, which should have led to the refund/rebate of the taxes paid on the services. Therefore, the impugned order was found to fail the test of law and was set aside, allowing the appeal.

This detailed analysis of the judgment highlights the issues surrounding the entitlement to rebate on exports of services, the determination of whether the services rendered constitute exports under the relevant rules, and the scope of the show-cause notice and the adjudicating authority's findings.