2021 (7) TMI 628 - AT - Service Tax

Refund of unutilised cenvat credit of service tax - export of services - receipt of convertible foreign excahnge through third party - rejection of refund on the ground of non-fulfilment of conditions prescribed under Rule 6A of Service Tax Rules, 1994 - ineligible input services or not - HELD THAT - The appellant have entered Sourcing Service Agreement with WMGS Services Ltd. Located in British Virgin Island and WMGS Netherlands located in the Netherlands and as per the JV agreement, the appellant was directed to raise the invoices in the name of WMGS China JV and accordingly the appellant have been raising invoices directly to WMGS China JV. Further after perusing the terms of both the agreements placed on record by the appellant, it is found that the appellant is providing services to WMGS BVI and WMGS Netherlands in accordance with the Sourcing Agreement without any deviation as per the JV agreement. The appellant has complied with the conditions prescribed under Rule 6A(1)(b) of Service Tax Rules, 1994 because the service recipient is located outside India and further as per Rule 3 of Place of Provision Rules, place of provision of the impugned services will be the location of the service recipient. Also, the appellant have been receiving foreign inward remittances on their export invoices which were coming to the appellant in terms of JV agreement from a designated bank account specifically opened for the said purpose - the appellant cannot be denied the benefit of export of services simply on the ground that payment has been routed through a 3rd party which is also based outside the country. Denial of refund on Works Contract Service - HELD THAT - It is found from various invoices submitted by the appellant that the said input service was used towards renovation of the premises occupied by the appellant and the said premises was used towards provision of output services and therefore eligible for the purpose of claiming cenvat credit - Further the Board s circular dt. 29/04/2011 relied upon by the appellant has clarified that the input service used in modernisation, renovation or repair is eligible for credit and the same thing has been held in the case of M/S ION EXCHANGE I LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, SUARAT-II 2017 (12) TMI 151 - CESTAT AHMEDABAD . Refund on Insurance Auxiliary Service - HELD THAT - The learned counsel did not press for the same as the amount involved is small. Interest on delay in refund - HELD THAT - As per the decision in the case of RANBAXY LABORATORIES LTD. VERSUS UNION OF INDIA AND ORS. 2011 (10) TMI 16 - SUPREME COURT , appellant is also entitled for grant of interest on delayed refund claim beyond the period of three months - the appellant is entitled for the interest on the delayed sanction of the refund. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Rejection of refund claims for unutilized CENVAT credit of service tax on input services.
2. Compliance with conditions under Rule 6A of Service Tax Rules, 1994.
3. Eligibility of certain input services (Works Contract Service and Insurance Auxiliary Services) for CENVAT credit.
4. Entitlement to interest on delayed refund.

Issue-Wise Detailed Analysis:

1. Rejection of Refund Claims for Unutilized CENVAT Credit:
The appellant, registered under Business Support Services and Technical Inspection and Certification Agency Services, filed refund claims for unutilized CENVAT credit of service tax on input services used for providing exported output services. The claims, filed under Rule 5 of CENVAT Credit Rules, 2004, were rejected by the original adjudicating authority and subsequently by the Commissioner (Appeals), citing non-fulfillment of conditions under Rule 6A of Service Tax Rules, 1994.

2. Compliance with Conditions under Rule 6A of Service Tax Rules, 1994:
The appellant argued that they complied with Rule 6A(1)(b) as the service recipients (WMGS BVI and WMGS Netherlands) were located outside India, and Rule 3 of Place of Provision Rules determined the place of provision as the location of the service recipient. The invoices were raised to WMGS China JV as per the JV agreement, and foreign inward remittances were received from WMGS Investment LLC, as stipulated in the JV agreement. The court found that the appellant met the conditions under Rule 6A(1)(b) and (d), as the services were provided to entities outside India and payments were received in convertible foreign exchange.

3. Eligibility of Certain Input Services for CENVAT Credit:
The appellant contended that Works Contract Service was used for renovating premises used for providing output services, thus eligible for CENVAT credit. The court agreed, citing Board’s circular No.943/04/2011-CX and the judgment in Ion Exchange (I) Ltd. The appellant did not press for the refund of Insurance Auxiliary Services due to the small amount involved and lack of supporting invoices.

4. Entitlement to Interest on Delayed Refund:
The appellant sought interest on delayed refunds, citing the Supreme Court’s decision in Ranbaxy Laboratories Ltd. and other cases. The court held that the appellant was entitled to interest on delayed refunds beyond three months from the date of application, as per Section 11BB of the Act.

Conclusion:
The impugned order was set aside, except for the refund amount pertaining to Insurance Auxiliary Services. The appeals were allowed, granting the appellant the refund and interest on delayed refunds.