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TMI Blog2020 (12) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... specially in U.K. and U.S.A., wherefrom it had made a substantial gross collection. Therefore, the impugned order holding that the movie was produced/released and the benefit was accrued only in India is factually incorrect. The impugned order at paragraph 8.3 and 8.4 has referred to Rule 8 of the Place of Provision of Services Rules, 2012 and the guidelines provided in CBEC Education Guide to conclude that in the case of a service receiver, the place relevant for determining location is the place where the service is 'used' or 'consumed'. Insofar as Rule 8 ibid is concerned, the statute recognizes the location of the recipient of service, in case, where both the provider as well as the receiver of service are located within the taxable territory i.e. India - In the case in hand, the contents of the agreement clearly provide that the main producer and the beneficiary of the subject movie is M/s Apple Orange. Since, such recipient of service is located in United Kingdom, which is a place outside the geographical limits of India, in my considered view, the provisions of Rule 8 ibid shall not be applicable to the present case. On the other hand, by close scrutin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x liability was required to be discharged on such output service. Since the output service did not suffer payment of service tax, the appellant was not in a position to utilize the Cenvat credit availed on the input services. Therefore, the appellant had filed the refund applications under Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No.27/2012-C.E. (N.T.) dated 18.06.2012, claiming refund of service tax amounting to ₹ 19,54,914/- and ₹ 23,50,726/- paid on the input services during the period from January - June' 2017. 1.2 The refund applications were adjudicated by the learned Deputy Commissioner of Service Tax, Mumbai vide order dated 23.04.2018 in rejecting the same. Being dis-satisfied with the said adjudication order, the appellant had preferred appeals before the learned Commissioner of GST CX. (Appeals-III), Mumbai, which were disposed of vide Order-in-Appeal No. NA/GST/A III/MUM/245-246/2018-19 dated 19.09.2018 (for short, referred to as the impugned order ), by rejecting the appeals filed by the appellant. In support of rejection of appeals, the learned Commissioner (Appeals) has recorded the following observations in the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces Rules, 2012 should be applicable for determination of the location of actual provision of service, which is India; as against the claim of the appellant that its case should be governed under Rule 3 ibid and as such, provision of service to the overseas entity should be considered as 'export'. The competing entries in the service tax statute are extracted herein below: Rule 3. Place of provision generally The place of provision of a service shall be the location of the recipient of service : PROVIDED that in case [of service the location of the service receiver is not available in the ordinary course of business, the place of provision shall be the location of the provider of service . Rule 8. Place of provision of services where provider and recipient are located in taxable territory Place of provision of a service, where the location of the provider of service as well as that of the recipient of service is in the taxable territory, shall be the location of the recipient of service. 5. I have carefully examined the contents of the agreement dated 02.01.2017 entered into between the overseas entity M/s Apple Orange and the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of a service receiver, the place relevant for determining location is the place where the service is 'used' or 'consumed'. Insofar as Rule 8 ibid is concerned, the statute recognizes the location of the recipient of service, in case, where both the provider as well as the receiver of service are located within the taxable territory i.e. India. In the case in hand, the contents of the agreement clearly provide that the main producer and the beneficiary of the subject movie is M/s Apple Orange. Since, such recipient of service is located in United Kingdom, which is a place outside the geographical limits of India, in my considered view, the provisions of Rule 8 ibid shall not be applicable to the present case. On the other hand, by close scrutiny of the rules framed under the Place of Provision of Services Rules, 2012, I find that the case of the appellant will not be governed under Rule 4 to Rule 12 itemized therein. Rather, the place of provision of service will more appropriately be categorized under Rule 3 ibid inasmuch as the service recipient has its business establishment in United Kingdom and thus, the place of provision of service is outsi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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