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TMI Blog2017 (3) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... ng) (hereinafter referred as TSS Asia for short). The appellant is subsidiary of TSS Asia for whom they spot trends, design apparel, accessories and house-wares, arrange for their production and overseas retail delivery. For such outsourcing, they have received consideration from TSS Asia in convertible foreign exchange. The appellants being 100% exporter of specified services are unable to utilize the Cenvat credit availed on the input services procured by them and used for provision of output services. Accordingly, they filed refund claim under Rule 5 of Cenvat Credit Rules, 2004 read with Export of Services Rules, 2005. The dispute pertains to the period July 2009 to January 2010 and the refund claim filed to the extent of Rs. 36,14,123/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imited vs. CST, Delhi - 2015 (37) STR 757 (Tri. Del.) 6. He submitted that the input services for which Cenvat credit have been availed have not been held to be not covered by definition of Rule 2(a) of Cenvat Credit Rules. Accordingly, the refund of service tax credit cannot be disallowed by taking the view that there is no nexus between input service and the services exported. He placed reliance on the decision of the Tribunal in the case of CST, Delhi vs. Convergys India Pvt. Limited - 2009 (16) STR 198 (Tri. Del.), which was upheld by the Hon'ble P&H High Court. Accordingly, he submitted that the refund claim merits to be allowed. 7. Ld. DR supported the impugned order. He also pointed out that though the payment for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "8.3 Though the term 'recipient' in respect of a service is not defined in the Finance Act, 1994 or in the rules made thereunder, the gap has to be filled by construction and on the analogy of the transaction of sale of goods, the service recipient in a transaction of the provision of service, has to be treated as the person - (a) on whose instructions the service has been provided and who is obliged to make payment for the provision of service; and (b) whose need is satisfied by the provision of service - it may be his personal need or the need of his business or need to meet some obligation to-some person." Following the above, the Tribunal has gone on to decide that the services rendered to principal in USA ,who had paid f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er was not satisfied with the documents submitted by the appellant before him. He observed that FIRCs produced by the appellant do not display the invoice number against which the remittance has been received. He observed that the advance received against future service cannot be related to the services for which the refund claim has been submitted. He has further observed that the appellant has failed to satisfy the conditions in CBEC Circular No. 112/6/2009 dated 12.03.2009. Ld. Counsel submits that statement of foreign exchange received for various export invoices have been certified by statutory auditor and the appellant is in a position to submit the certified statements to convince the fact that foreign exchange is relatable to forei ..... X X X X Extracts X X X X X X X X Extracts X X X X
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