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2017 (4) TMI 37 - CESTAT NEW DELHIExport of services - Refund claim - unutilised CENVAT credit - denial on the ground that the services provided by the appellant appear to fall under the category of ‘intellectual property service’ and not under ‘engineering consultancy service’ as claimed by the appellant and also on the ground that the services were rendered in India and cannot be categorized as export. Held that: - the services rendered by the appellant will fall under the category of taxable services provided or to be provided to any person by a consulting engineer in relation to advise, consultancy or technical assistance in any manner in one or more disciplines of engineering including the discipline of computer hardware engineering [Section 65 (105) (g)]. We also refer to the trade notice of the Department dated 04.07.1997 which explained the scope of tax entry. We note that the appellants are not involved in any service of intellectual property and do not come in possession of any such IPR. The terms of the agreement do not provide for payment of any consideration for transfer of any such IP Rights. The appellants are engaged in providing consultancy with reference to licensed unit in India for and on behalf of foreign entity. As such, based on the location of the recipient of service, the service is to be considered as exported. The benefit of service accrues to a foreign company and the said company pays consideration for such service. Since consulting engineering service also is a category (iii) service as mentioned in Export of Services Rules, 2005, the location of recipient of service is relevant. As such, the appellants were engaged in providing services, which are exported out of country. The appellant’s eligibility to refund claim under Rule 5 of the Export of Services Rules, 2005 read with N/N. 12/2005- ST has to be examined - appeal allowed by way of remand.
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