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TMI Blog2022 (9) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... the same is fixed, in consonance with the location of the registered premises of the service provider from which the output services are exported, clearly the notification does not prohibit the grant of Cenvat credit even if the premises are not registered. The fixation of jurisdiction of the competent officer, cannot be read in a manner that it obliterates the rights of the exporter of output services to claim refund of Cenvat credit. Whether the supply of service by a subsidiary/sister concern of a foreign company in India which is incorporated under the laws in India to a foreign company incorporated under laws of a country outside India will hit by condition (v) of sub- section 6A of Service Tax Rules, 1994? - HELD THAT:- The services rendered would be treated as Export of services when clause (a) to clause (d) refers to provider of service is located in the taxable territory and recipient of service is located outside India and the service is not a service specified in Section 66D of the Act and the place of the provision of the service is outside India and as per clause (e) the payment for such service has been received by the provider of service in convertible Foreig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horised Representative for the Respondent ORDER Present appeal has been filed to assail the Order-in-Appeal No. 41/2021 dated 30.11.2021. The facts giving arise to the impugned appeal in brief are as follows: 1.1 Appellant is engaged in rendering taxable services of business support to the following group companies i.e. Selling Simplified Group, Selling Simpliefied Inc, Selling Simplified Ltd. U.K. Three of the companies are located outside of India. The appellant is availing Cenvat credit of input services used to render the said output service as they are paying service tax on such input services. The appellant filed the refund claim on 22.12.2016 amounting to Rs.9,97,364/- under Notification No.27/2012-CE(NT) dated 18.06.2012 issued under Rule 5 of Cenvat Credit Rules, 2004 (herein after called as CCR, 2004) along with several documents. Department observed that the appellant had centralized service tax registration for the premises at G-92, Basement, Kalkaji, Delhi but have claimed some input service credit for the services utilized at the premises located at A-22, Sector-64, Noida (UP), the unregistered premises. Some export invoices were also raised from the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the establishment of a distinct person and hence, the conditions mentioned in Rule 6A of the Service Tax Rules, 1994 stands fulfilled. Reliance has been placed upon the decision of this Tribunal, Ahmedabad Bench, in the case of M/s. L T Sargent Lundy Limited Vs. C.C.E. S.T. Vadodara-I, Final Order No. A/12459/2021 dated 26.10.2021. With these submissions learned Counsel has prayed for the order under challenge to be set aside and the present appeal to be allowed. 4. While rebutting these submissions learned DR has placed reliance upon the Order-in-Appeal as has been challenged in the impugned appeal. It is submitted that Commissioner (Appeals) has duly dealt with the respective rule i.e. Rule 4 of Service Tax Rules, 1994, pursuant whereto it is a statutory mandate that the service provider who is eligible to take the Cenvat credit after export of services and in whose name the invoice has been raised shall be the registered premises of the service provider. Apparently and admittedly, the office of the appellant as Noida was an unregistered premise. The Cenvat credit of inputs received in Noida premises and based on the invoices of Noida premises cannot be made availabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice provider in case the service provider has central registration. Even Form-A nowhere suggests that any such condition must be observed. 6. The another relevant rule for adjudicating the above framed question is Rule 5 of CCR, 2004. It reads and follows: 5. Refund of Cenvat credit. - (1) A manufacturer who clears a final product or an intermediate product for export without payment of duty under bond or letter of undertaking, or a service provider who provides an output service which is exported without payment of service tax, shall be allowed refund of Cenvat credit as determined by the following formula subject to procedure, safeguards, conditions and limitations, as may be specified by the board by notification in the Official Gazette (Export turnover of goods + Export turnover of services Refund amount= Total turnover x Net Cenvat credit Where, - (A) Refund amount means xxxxx (B) Net Cenvat credit means xxxxxxx (C) Export turnover of goods means xxxxx (D) Export turnover of services means xxxx Export turnover of services = payments received during the relevant period for export services + export services whose pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me view. For the sake of convenience, the relevant observations made in mPortal India Wireless Solutions (P) Ltd. v. Commissioner of Service Tax, Bangalore, are extracted hereafter: 6. The assessee is a 100 per cent export oriented unit. The export of software at the relevant point of time was not a taxable service. However, the assessee had paid input tax on various service. According to the assessee a sum of Rs. 4,36,985/- is accumulated Cenvat credit. The Tribunal has categorically held that even though the export of software is not a taxable service but still the assessee cannot be denied the Cenval credit. The assessee is entitled to the refund of the Cenval credit. Similarly insofar as refund of Cenvat credit is concerned, the limitation under Section 11B does not apply for refund of accumulated Cenvat credit. Therefore, bar of limitation cannot be a ground to refuse Cenvat credit to the assessee. 7. Insofar as requirement of registration with the department as a condition precedent for claiming Cenvat credit is concemed, learned counsel appearing for both parties were unable to point out any provision in the Cenvat Credit Rules which impose such restriction. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a foreign company incorporated under laws of a country outside India will hit by condition (v) of sub- section 6A of Service Tax Rules, 1994. It reads as follows: Export of services.- 6A. (1) The provision of any service provided or agreed to be provided shall be treated as export of service when, - (a) the provider of service is located in the taxable territory. (b) the recipient of service is located outside India, (c) the service is not a service specified in the section 66D of the Act. (d) the place of provision of the service is outside India, (e) the payment for such service has been received by the provider of service in convertible foreign exchange, and (f) the provider of service and recipient of service are not merely establishments of a distinct person in accordance with item (b) of Explanation 3 of clause (44) of section 65B of the Act (2) Where any service is exported, the Central Government may, by notification, grant rebate service tax or duty paid on input services or inputs, as the case may be, used in providing such service and the rebate shall be allowed subject to such safeguards, conditions and limitations, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) to Section 65B(44) of the Act, 1994 read with Rule 6A of the Rules, 1994 as by no stress of imagination, it can be said that the rendering of services by the petitioner No. 1 to its parent Company located outside India was service rendered to its other establishment so as to deem it as a distinct person as per Item (b), explanation 3 of clause (44) of Section 65B of the Act, 1994, the petitioner No. 1 which is an establishment in India, which is a taxable territory, which is the other company in non-taxable territory cannot be considered as establishments so as to treat as distinct persons for the purpose of rendering service. Therefore, the services rendered by the petitioner No 1-Company outside the territory of India to its parent Company would have to be considered export of service as per Rule 6A of the Rules, 1994 and Clause (f) of Rule 6A of the Rules, 1994 would not be applicable in the facts of the case as the petitioner No. 1, who is the provider of service and its parent Company, who is the recipient of services cannot be said to be merely establishment so as to be distinct persons in accordance with Item (b) explanation 3 of Clause (44) of Section 658 of the Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion has definitely traveled beyond the scope of show cause notice. Hon ble Apex Court in the case of M/s. Brindavan Beverages (P) Ltd. (supra) has held that show cause notice is a foundation on which the department has to build up its case. Thus, it should be specific and should contain all relevant details so that an assessee is able to give reply to specific allegations of the show cause notice. Since the issue of jurisdiction was not specifically taken in the show cause notice the adjudication on this point against the assessee is not sustainable. The appellant since admittedly has centralized registration in terms of sub clause (2) and (3) of Rule 4 is Noida unit was not required to be registered. Refund claim should not have been rejected on this ground. The services provided by the appellant amounts to export of service as were received by the company located outside the taxable territory irrespective those were the group companies of the appellant. 13. In view of these observations, the order under challenge is held to be the result of wrong interpretation of the relevant provisions and notifications. It is accordingly hereby set aside. Consequent thereto, appeal stands ..... 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