2019 (1) TMI 1043 - AT - Service Tax

Refund of unutilized CENVAT Credit - Export of services or not - technical testing and analysis services - Rule 5 of CCR - rejection of refund on the ground that technical testing and analysis services provided by the Appellant cannot be termed as export of service - Held that - Tribunal in another decision in Appellants own case involving identical issue in Fertin Pharma Research & Development Pvt. Ltd. vs Commissioner of CGST, Navi Mumbai 2018 (10) TMI 1373 - CESTAT MUMBAI decided the issue in favor of the Appellant by holding that this Tribunal has already taken a view that the services rendered by the appellant are in the nature of export service and hence eligible to cash refund of accumulated CENVAT Credit. The Appellants are entitled for the refund claim of unutilized Cenvat credit - appeal allowed - decided in favor of appellant.

Issues Involved:
1. Whether technical testing and analysis services provided by the appellant can be termed as export of service.
2. Eligibility for refund claim of unutilized Cenvat credit under Rule 5 of Cenvat Credit Rules, 2004.

Detailed Analysis:

1. Whether technical testing and analysis services provided by the appellant can be termed as export of service:

The appellant is engaged in research and development on pharmaceutical products, classified under Technical Testing and Analysis Service. The results of these activities were communicated to their Parent Company in Denmark via email. The appellant purchased goods from the Parent Company after paying appropriate Customs Duty, indicating a sale and purchase transaction rather than a temporary transfer. The appellant carried out research activities and exported their services against convertible foreign exchange. The Cenvat credit accumulated due to exports was claimed for a refund but was rejected by the authorities on the grounds that the services could not be termed as export of service.

The Tribunal considered the conditions under Rule 6A of the Service Tax Rules, 1994, which defines 'export of service' as:
(i) The service provider is located in India.
(ii) The service recipient is located outside India.
(iii) The service is not covered by the negative list under Section 66D of the Finance Act, 1994.
(iv) The place of removal of service as per Rule 3 of the Place of Provision of Services Rules, 2012, is outside India.
(v) Payment for the service is received in convertible foreign exchange.
(vi) The service provider and recipient are separate legal entities with a legal agreement on the subject matter.

The Tribunal found that the appellant fulfilled these conditions, thereby classifying the services as 'export of service'.

2. Eligibility for refund claim of unutilized Cenvat credit under Rule 5 of Cenvat Credit Rules, 2004:

The appellant claimed a refund of ?4,31,384/- for the period from January 2016 to March 2016. The Tribunal referenced previous decisions in the appellant's own case and similar cases, where it was held that services rendered by the appellant are in the nature of export services, thus eligible for a cash refund of accumulated Cenvat credit.

In the case of Advinus Therapeutics Ltd., it was established that scientific or technical consultancy services provided for the development of drugs to an overseas recipient are considered 'export services'. The Tribunal emphasized that service tax is a consumption-based levy, and the technical and consultancy service is completed upon delivery of the test report to the overseas client. This principle was reiterated in the appellant's case, confirming the eligibility for a refund.

The Tribunal also addressed the contention that the Place of Provision of Service Rules, 2012, was not considered in the previous judgments. It concluded that the basic principle of service tax as a consumption-based levy applies, and the services provided by the appellant qualify as export services.

Conclusion:

The Tribunal set aside the impugned order and allowed the appeal, granting the refund claim of unutilized Cenvat credit. The matter was remanded to the adjudicating authority to calculate the admissibility of the refund amount, excluding credit availed on input services like Building maintenance charges and rent-a-cab service, which were not substantiated with necessary evidence or placed under the exclusion clause of the definition of input service after the amendment to Rule 2(l) of the Cenvat Credit Rules, 2004, effective from 01.04.2011.

The appeal was disposed of accordingly, with consequential relief granted to the appellant.

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