2013 (2) TMI 583 - AT - Service Tax

Refund claim of Cenvat credit - Export - Input services - service tax paid on business auxiliary service - unable to utilize the credit availed - nexus between input services and the output services rendered. - Held that - Perusing the agreement relating to marketing fees and as per the Business Associates Agreement entered into by the appellant with Syntel Inc., USA has agreed to provide marketing services in relation to software services developed by Syntel International Pvt. Ltd., India and Syntel Inc., USA has to identify customers in USA and make efforts to get the customers and assist Syntel (India) inrespect of sales in USA by providing sales and technical information and other materials regarding Syntel services including sales promotion literature or brochures. It is for rendering these assistance, the consideration is paid. The consideration is paid in convertible foreign exchange and the appellant has discharged the service tax liability on reverse charge basis under Section 66A of the Finance Act, 1994. The said services squarely fall under the category of business auxiliary service as defined in Section 65 (19) and the taxable service covered under Section 65 (105) (zzb) of the Finance Act 1994. Such service falls within the definition of input service under Rule 2 (l) of the Cenvat Credit Rules, 2004. Thus assessee allowed for refund of service tax paid on business auxiliary service on reverse charge basis, which was rejected in the impugned order - in favour of assessee.

Summary

Issues:
Refund claim rejection for various input services under Cenvat Credit Rules, 2004, specifically marketing fees paid to a foreign service provider.

Analysis:
The appellant, engaged in providing software development services, filed a refund claim for unutilized Cenvat credit amounting to Rs. 30,92,604/- for the period from 01/10/2008 to 31/12/2008. The refund claim was partially sanctioned and partially rejected by the authority. The rejected amount included marketing fees paid to a foreign service provider, garden maintenance charges, gas filling and servicing charges, and lighting toran for Navratri festival. The lower appellate authority upheld the rejection, stating that these services did not have a nexus with the exported output services. The appellant appealed this decision, emphasizing the marketing fees paid to the foreign service provider for marketing/selling software services. The appellant argued that these services fell under the category of business auxiliary service and were eligible for refund. The department, represented by the Ld. AR, supported the lower authorities' findings.

During the hearing, the appellant provided the Business Associates Agreement with the foreign service provider, showing that the services provided fell under business auxiliary service. The agreement outlined the marketing services provided by the foreign service provider, including identifying customers, sales promotion, and sales assistance. The consideration for these services was paid in convertible foreign exchange, and the appellant discharged the service tax liability on reverse charge basis under Section 66A of the Finance Act, 1994. The Tribunal examined the agreement and concluded that the services indeed fell under business auxiliary service as defined in the Finance Act, 1994. These services were considered input services under the Cenvat Credit Rules, 2004. The Tribunal noted that the department had allowed a refund for similar services in the subsequent period. Therefore, the Tribunal allowed the refund claim for the marketing fees paid to the foreign service provider, stating that the appellant was rightly entitled to the credit of the service tax paid on business auxiliary service. The appeal was allowed with consequential relief.

In conclusion, the Tribunal ruled in favor of the appellant, allowing the refund of service tax paid on business auxiliary service, which was initially rejected. The decision was based on the agreement with the foreign service provider, demonstrating that the marketing services provided fell under the category of business auxiliary service, making them eligible for refund under the Cenvat Credit Rules, 2004.