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TMI Blog2021 (11) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 2013 and April-June 2013 respectively. In all these cases the Adjudicating Authority had sanctioned the refund and amount was paid to the appellants. However, subsequently the refund orders were reviewed under Section 84(1) of the Finance Act 1994 (hereinafter referred to as the Act), by the Principal Commissioner, Service Tax and as directed, appeals were filed by the Department before the ld. Commissioner (Appeals), who set aside all the original orders vide which refunds had been sanctioned earlier. The appellants then, after paying back the refund amounts to the Department, have filed four appeals before the Tribunal against the impugned order passed by the ld. Commissioner (Appeals). 2.1. The fifth appeal before us pertains to the refund claims filed by the appellants for 7 subsequent quarters, covering the period July 2013 to March 2015. The seven applications pertaining to these quarters were rejected by the Adjudicating Authority by a common order, and the said rejection was on appeal by the appellants, upheld by the ld. Commissioner (Appeals). Against this order of the ld. Commissioner (Appeals) also the appellants have filed appeal before the Tribunal (ST/52992/2016). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax at all is payable at the output level. The rule above is intended to meet contingencies to ensure that CENVAT scheme is not a scheme for extending subsidy, but is a scheme to lessen the burden of input taxation. Hence the contention of the assessee is specious and bereft of any merit. (Para 7.4 of the impugned order) (vi) The appellant firm is being denied the credit because the services so rendered by them are not taxable at their end irrespective of the fact whether the same are provided domestically or are exported. (Para 9 of the impugned order) 4. Appearing on behalf of the Appellants, Ms. Lalitha Krishnamurthy, learned Chartered Accountant made the following submissions: (i) Notification no. 30/2012-ST dated 20.6.2012 applies to taxable services provided to any business - entity located in taxable territory, by an individual Advocate or a Partnership firm of Advocates by way of legal services. It does not apply to taxable services provided by way of legal services to a recipient located outside the taxable territory, i.e. it does not apply to export of legal services and hence service tax is not liable to be paid by the recipient of the legal service ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly to exempted services and not to export of service, which is clear from Rule 6(7) of CENVAT Credit Rules, 2004. This rule provides that the provisions of sub Rules (1), (2), (3) and (4) shall not be applicable in case the taxable services are provided, without payment of service tax, to unit or developer in SEZ or when a service is exported. (vi) That contrary to the view of the ld. Commissioner (Appeals) in the impugned order, disputed refund would not amount to a subsidy, but only a compensation for taxes paid by the assessee in respect of services exported. Subsidy, on the other hand, is a financial incentive to reduce the cost. (vii) Department had never asked the appellants to reverse CENVAT Credit or to get themselves deregistered or pointed out that the appellants had taken wrongful credit in spite of regular filing of returns, and hence the Department cannot now say that appellant firm is not eligible to take CENVAT Credit. (viii) No provision has been shown by ld. Commissioner (Appeals) to substantiate his view, that input credit would not be allowed when services that are subjected to reverse charge in the domestic market are exported. (ix) CENVAT Scheme has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. Commissioner of Services Tax (CESTAT, Mumbai) noticing the ruling of Hon'ble Karnataka High Court in Mportal India Wireless Solutions Pvt. Ltd., it was observed in para 8 of the order that the object of EXIM Policy of the Government of India is to promote exports of goods and services, and not export of taxes. Otherwise, it would render the exports of software uncompetitive. Keeping in view of above policy - objective of the government, it is appropriate to hold that the appellants are eligible for the refund of the amount claimed by them of Rs. 2,14,45,060/- during the impugned period on account of export of exempted services, subject to the satisfaction of other conditions prescribed. 5. Learned Authorised Representative appearing for the Revenue, on the other hand, submitted that when the Appellants are not paying any tax on the service provided by them, they are not eligible for any input credit. She also reiterated the findings of the ld. Commissioner (Appeals). 6. Having considered the rival contentions, we arrive at a conclusion that it would be necessary to examine some of the legal provisions quoted by the parties. 1.1. Rule 2(p) of the CCR defines "output service" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) (i) ........ (ii) ........ (a) ........ (b) ........ (c) ........ (d) ........ (e) ........ (f) ........ (iii) ........ (iv) provided or agreed to be provided by,- (A) ........ (B) an individual advocate or a firm of advocates by way of legal services, (C) ........ (1) ........ (2) ........ to any business entity located in the taxable territory; (v) ........ (B) ........ II. The extent of service tax payable thereon by the person who provides the service and the person who receives the service for the taxable services specified in (I) shall be as specified in the following Table, namely:- Sl. No. Description of a service Percentage of service tax payable by the person providing service Percentage of service tax payable by the person receiving the service 1 2 3 4 5 in respect of services provided or agreed to be provided by individual advocate or a firm of advocates by way of legal services Nil 100% 6 7 8 9 10 &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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