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2014 (9) TMI 568 - HC - Service TaxRefund of cenvat credit - Export of services or not - services provided from India or not - onsite work undertaken at customer’s premises - software development service - Rule 5 of the CENVAT Credit Rules, 2004 read with the Notification No. 05/2006-CE(NT) - export of service as provided in Rule 3(2) for the period post 27/02/2010 - Held that:- first condition (clause (a)) with regard to provision of service from India and its use outside India has not been satisfied. The services have been performed at overseas' customers' site by the subsidiaries of the Appellants, though they may be to the customers of the Appellants. However, these services have not been provided by the Appellants, but claimed to be provided by their subsidiaries. The agreement has been referred to in great details by the Tribunal and it arrived at a conclusion that there may not be any privity of contract as between the subsidiaries of the Appellants and customers, but the situs of service and its provision is both abroad. With the provision of service and site at which the service is provided the Appellants who are in India cannot be said to be involved. The service has been held to be not provided by the Appellants from India. Tribunal was right in it's conclusion that the services provided do not satisfy the requirement of the Export of Service Rules, 2005 as prevailing prior to their amendment with effect from 27.02.2010. In such circumstances any wider questions or controversy need not be gone into and decided. The Written Submissions of the Appellants referred to the services in relation to immovable property and based on that the arguments are canvassed. We are of the view that there was no Rule 3(1) (ii) of the Export of Service Rules, 2005 as initially introduced. There was Rule 3(1)(i) and (iii). We are not in agreement with Mr.Sridharan that the business establishment of the service provider is in India and final consumption and consumer is outside India. We find that the provider of service is also a subsidiary outside India and recipient is also outside India. Regarding alternative claim of refund under different provision - Held that:- Appellants had not invoked any specific provision and made an application under the same to claim refund. They could not have invoked Section 11B of the Central Excise Act, 1944 during the course of the proceedings. In the facts and circumstances of the present case Mr.Kantharia is right in urging that the reasons assigned in paragraph 5.9 of the impugned order by the Tribunal cannot be faulted. There is no application made in a prescribed format and time by the Appellants to claim the refund. The refund claim will have to be decided in accordance with the provisions and after the compliance is made with the procedural formalities set out therein. Today, we cannot entertain the argument alternatively made on the claim of refund without any such compliance leave alone any application. For all these reasons we do not find any basis for the alternate claim as well. In the event the Appellants wish to make any such claim it is open for them to invoke the provisions in that regard and as available in law - Decided against Assessee.
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