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TMI Blog2018 (12) TMI 1481X X X X Extracts X X X X X X X X Extracts X X X X ..... ment inasmuch as the services all along were provided by the appellant pursuant to the contract to its parent company located in Japan. The situation being same for entire period, denial of refund for a part period is not legally sustainable, without substantiating the fact that the appellant also provided services to the parties within the country. In view of the fact that input services were used for providing the output service, which was exported, the appellant should statutorily be entitled for refund of service tax paid on input services, which were lying unutilised in the Cenvat account for a considerable period of time. It is a settled position of law that the authorities while adjudicating the refund application under Rule 5 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the output service. Thus, the appellant had filed refund applications, claiming refund of service tax paid on the input services used for exportation of the output service. The refund applications were filed under Rule 5 of the Cenvat Credit Rules, 2004. The refund issue was adjudicated by the original authority. In some cases, the refund benefit was allowed in favour of the appellant and in some other cases, the refund benefit was denied on the ground that the input services are neither confirming to the definition of input service or have any nexus with the output service exported by the appellant. Further, in some cases refund benefit was also denied on the ground that the services provided by the appellant cannot be considered as expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Input service not consumed for provision of output service 9 April 2013 to June 2013 Input service not consumed for provision of output service 10 July 2012 to Sep. 2012 Input service not consumed for provision of output service 11 Jan. 2012 to March 2012 Input service not consumed for provision of output service 12 Oct. 2011 to Dec. 2011 Input service not consumed for provision of output service 13 July 2013 to Sep. 2013 Input service not consumed for provision of output service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /utilized entirely for providing the taxable service, which was exported by the appellant, the benefit of refund as provided under Rule 5 of the rules should be available. He has relied on various decisions rendered by different judicial forum to support claim of the refund benefit. 3. With regard to the observations of the learned Commissioner (Appeals) that the input services were not consumed for provision of output service, the learned Advocate contended that the appellant being a 100% subsidiary of M/s.KLSM, Japan, the output service in entirety was provided to such parent company and in absence of any service being provided to the service recipient within the country, the service tax paid on the input services should be available a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tantiating the fact that the appellant also provided services to the parties within the country. I find that in the case of American Express (I) Pvt. Ltd., Vs. Commissioner of Service Tax, reported in 2917-TIOL-445-CESTATDel., this Tribunal has observed that on the similar set of facts, when the department had sanctioned refund claims for the earlier period in accepting the fact that the assessee had provided taxable services to foreign clients, such stand cannot be altered at a subsequent stage for denial of the benefit on the ground that the service is not conforming to export of service. In this case, since the appellant is a subsidiary of foreign company and provides the output service in entirety to such parent company, there was no sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there is no nexus between the input services, viz., renting of immovable property, cleaning service, works contract service, real estate service, management, maintenance or repair service, courier service, the said services are no doubt used/utilized by the appellant for providing the output service, which were exported. For claiming the refund benefit of service tax paid on the input service, Rule 5 of the rules provides for refund, subject to observance of the procedures laid down therein. The said rule provides the formula, which has to be complied with by the assessee for claiming the refund benefit. The authorities below have not disputed the fact that the appellant had not complied with the requirement of the said rules for claimi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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