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2018 (3) TMI 770 - AT - Service TaxRefund of unutilzed CENVAT credit - Management or Business Consultant Service (MBCS) - Business Auxiliary Service (BAS) - Providing Real Estate Advisory Service (REAS) to foreign/ overseas clients in respect of the properties situated in India - whether, the activities of the appellants would come within the purview of MBCS and BAS, as claimed by the appellant; or under the category of REAS, as held by the lower authorities and that whether, the appellants are entitled to get the refund under Rules 5 of the Cenvat Rules, 2004 read with Export of Services Rules, 2005? Held that - by investing in a company in real estate sector, the investor does not acquire or purchase the real estate property itself - Tribunal in the case of AMP capital Advisors Indian Pvt. Ltd. Vs. CST, Mumbai 2015 (6) TMI 122 - CESTAT MUMBAI , observed that the appellant providing advisory services to AMP capital, Australia and the service recipient using said advice received for further advising for their customers in India, would qualify for export of service. The activities rendered by the appellant would come within the purview of MBCS and the appellants are entitled for the refund benefit - appeal allowed - decided in favor of appellant.
Issues Involved:
1. Classification of services provided by the appellants: Whether they fall under "Management or Business Consultant Service" (MBCS) and "Business Auxiliary Service" (BAS) or "Real Estate Advisory Service" (REAS). 2. Entitlement of the appellants to refund under Rule 5 of the Cenvat Credit Rules, 2004 read with Export of Services Rules, 2005. Issue-wise Detailed Analysis: 1. Classification of Services: The primary issue was whether the appellants' services should be classified under MBCS and BAS or REAS. The appellants were registered under MBCS and BAS and entered into agreements with foreign entities to provide investment advice related to Indian companies. The Department argued that the services were related to REAS because they pertained to properties in India, thus not qualifying as export services. The Tribunal examined the definitions under the Finance Act, 1994: - Section 65(88) defines "real estate agent" as a person engaged in services related to sale, purchase, leasing, or renting of real estate. - Section 65(89) defines "real estate consultant" as a person providing advice, consultancy, or technical assistance concerning real estate. - Section 65(65) defines "management or business consultant" as a person providing services related to the management of an organization or business, including financial management, human resources, marketing, etc. The Tribunal analyzed the agreements, particularly the "Advisor and Services Agreement" with DWRES, which outlined the appellants' duties to perform research, analysis, and provide advisory services on investment opportunities in Indian companies. It was determined that the services were advisory in nature, focusing on investment opportunities and not directly related to real estate transactions. The Tribunal concluded that the services provided by the appellants were covered under MBCS, as they involved financial management advice rather than direct real estate consultancy. The appellants' role was limited to advising on investments, not engaging in real estate transactions. 2. Entitlement to Refund: The appellants sought refunds under Rule 5 of the Cenvat Credit Rules, 2004, claiming that their services qualified as exports since they were provided to foreign clients, and payment was received in convertible foreign exchange. The lower authorities had rejected the refund claims, classifying the services under REAS and asserting that the services were consumed in India. The Tribunal referenced previous decisions, such as AMP Capital Advisors India Pvt. Ltd. vs. CST, Mumbai, where it was held that advisory services provided to foreign entities, even if related to Indian investments, qualify as export services if the recipient is located outside India and the payment is received in foreign exchange. The Tribunal found that the appellants' services were indeed used by foreign clients and the benefit accrued outside India. Therefore, the services met the criteria for export of services under the Export of Services Rules, 2005. Conclusion: The Tribunal concluded that the services provided by the appellants fell under MBCS and were eligible for refunds under Rule 5 of the Cenvat Credit Rules, 2004 read with Export of Services Rules, 2005. The appeals were allowed in favor of the appellants, and the impugned orders were set aside. [Pronounced in the open Court on 13.03.2018]
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