2022 (5) TMI 867 - AT - Service Tax

Refund claim - credit of additional duty of customs (CVD) on inputs imported - credit of service tax on certain input services like renting of immovable property, of ITSS Services and Consulting Engineering services procured locally and Air passenger transport services - Reverse Charge Mechanism - Refund of services locally procured but billed in US Dollars is not admissible - Refund on defective invoices - rejection on the issue that there is no nexus of the input services with the services exported - HELD THAT - As far as the issue of nexus is concerned, the same stands covered by various decisions which have been delivered subsequent to the passing of the impugned orders - In the case of TEXAS INSTRUMENTS (INDIA) PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX 2014 (9) TMI 1135 - CESTAT, BANGALORE , it was directed that the issue of nexus be determined in the light of the directions given in the Interim Order - This Bench has also decided the nexus in respect of various services in the case of SAMSUNG R D INSTITUTE INDIA BANGALORE PVT. LTD. VERSUS C.C.E C.S.T. -BANGALORE SERVICE TAX- I 2019 (7) TMI 1418 - CESTAT BANGALORE . The issue of nexus in respect of the services, raised in the impugned orders are now settled. Therefore, on the issue of nexus, the appeals are allowed. Refund of credit of service tax wherein invoices were raised in the USD, in respect of ITSS Services - HELD THAT - It is seen that the refund relates to invoices raised by many companies (around twenty); though the services were procured in India, receipts were in foreign currency; the appellant s claim that they have sub-contracted part of their activity to these vendors. It is a argument of the appellants that these services were utilised by them while rendering service to the overseas entity. However, it is found that as per the tripartite agreement between TI, USA, TI, India and the vendors payments are made in foreign currency by TI, USA, implying thereby that the service recipient is TI, USA and not the appellant. Therefore, the services of vendors can be at best treated as export by the vendors themselves and not the TI, India, the appellant. It is clear that even as per the tripartite contracts, the appellants are a sort of middle-man in respect of the services rendered by the vendors. While TI, USA receives the services rendered by the vendors and pays for the same in USD, TI, India acts only as a facilitator in receiving the money in USD from TI, USA and making payments to the Indian vendors in INR. The appellants, therefore, cannot be held to be receivers of the input services rendered by the vendors and used in the export of services to TI, USA - the appellants take neither take the credit of service tax paid on the services rendered by the vendors nor claim the same as refund. Thus the issue of nexus between various input services and the export services is settled in favour of the appellants - Appellants are not eligible to take the credit of service tax paid on the services rendered by the vendors, for which they received payment from TI, USA in USD, and consequentially, the appellants are not eligible to claim refund of the same - appeal allowed in part.

Issues Involved:
1. Refund of credit of additional duty of customs (CVD) on imported inputs.
2. Refund of credit of service tax on certain input services like renting of immovable property, ITSS services, Consulting Engineering services, and Air passenger transport services.
3. Refund of service tax paid under Reverse Charge Mechanism (RCM) for various services.
4. Refund of services locally procured but billed in US Dollars.
5. Refund claims based on defective invoices.

Detailed Analysis:

1. Refund of Credit of Additional Duty of Customs (CVD) on Imported Inputs:
The appellants claimed a refund of CVD paid on imported goods, which was denied on the grounds that the STPI unit is eligible to procure inputs locally. The Tribunal referred to previous cases, such as Apotex Research Private Limited, which held that 100% EOUs need not pay CVD at all. Therefore, the Tribunal allowed the refund claim to the extent that the appellants should not have paid CVD on imported inputs.

2. Refund of Credit of Service Tax on Certain Input Services:
The appellants sought refunds for service tax paid on various input services, including renting of immovable property, ITSS services, Consulting Engineering services, and Air passenger transport services. The Tribunal analyzed each service type as follows:

- Renting of Immovable Property: Refund was initially denied due to discrepancies in the address on invoices. The Tribunal referenced mPortal India vs. CST and Orient Bell Ltd. vs. CCE, which supported the appellants' claim, allowing the refund.

- ITSS Services and Consulting Engineering Services: Refunds were denied due to a perceived lack of nexus with exported services. The Tribunal referred to the Hollister Medical India case, which established the necessary nexus, thus allowing the refund.

- Air Passenger Transport Services: Refunds were denied due to incomplete ticket details. The Tribunal, referencing Manhattan Associates (I) Dev. Centre Pvt. Ltd. v. CST, found that e-tickets satisfy the required conditions, allowing the refund.

3. Refund of Service Tax Paid Under Reverse Charge Mechanism (RCM):
The appellants claimed refunds for service tax paid under RCM on various services like ITSS, Management or Business Consultant Services, and Business Support Services. The Tribunal found that these services were essential to the appellants' output activities and referenced Knoah Solutions Pvt. Ltd. v. Commissioner of Customs, supporting the appellants' claim and allowing the refund.

4. Refund of Services Locally Procured but Billed in US Dollars:
The appellants claimed refunds for services procured locally but billed in USD. The Tribunal found that these services were integral to the appellants' business operations and referenced the appellants' own case and other similar cases, allowing the refund.

5. Refund Claims Based on Defective Invoices:
Refunds were denied due to defective invoices, such as missing or incorrect details. The Tribunal found that the appellants had provided sufficient evidence, including sample certificates from vendors indicating service tax payment in INR, thus allowing the refund.

Additional Findings:
- The Tribunal upheld the denial of refunds where services were billed in USD but were actually received by TI, USA, not the appellants.
- The Tribunal emphasized that the appellants cannot claim refunds for services where they acted merely as intermediaries.

Conclusion:
The Tribunal allowed the appeals partly, affirming the nexus between input services and exported services but denying refunds for services billed in USD where the appellants were not the actual service recipients. The order was pronounced in the open court on 12/05/2022.

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