Important Case Laws on Export of Services and claim of exemption/ rebate / refund consequence to such export

2010 TMI - 76132 - CESTAT, AHMEDABAD

M/s. B.A. Research India Ltd. Versus CST Ahmedabad

Dated: 17-05-2010

Export of technical testing and analysis - . The demand of service tax stands confirmed by the adjudicating authority on the ground that the clinical report of testing and analysis were conducted entirely in India and the fact that such reports were sent abroad is only a secondary aspect. In as much as the testing and analysis were performed in India and no part of the service was performed outside India, the service cannot be termed as 'export outside India'. 

Held that: The performance of testing and analyzing has no value unless and until it is delivered to its client and the service is to be complete when such report is delivered to its client. Thus, delivery of report to its client is an essential part of the service report was delivered outside India and same was used outside India. This is not the disputed fact. - Benefit of export allowed. Conditions of rule 3(2) are satisfied.

 

2010 TMI - 76131 - CESTAT, AHMEDABAD

CCE Rajkot Versus M/s Shelpan Exports

Dated: 14-05-2010

Export of business auxiliary service - receipt of consideration in INR - The respondent (assessee) contended that the services provided by him were covered under the category of export services and therefore he was not liable to pay the service tax. 

Held that: I find that the Commissioner (Appeals) has considered the receipt of foreign currency in detail in Para 7 of his order. He has observed that on the basis of record that arrangement was made between the buyer and sellers to pay the commission amount in Indian Rupee (INR) directly to the respondent at the prevailing USD/INR conversion rate. He has also observed that this arrangement was agreed to minimize the cost relating to the transfer charges by foreign banks since the commission amount was very small - Benefit of exemption allowed

 

2010 TMI - 76054 - CESTAT, BANGALORE

Nisha Designs Versus Commissioner of Customs

Dated: 17-04-2009

Cenvat Credit- Notification No. 5/2006-CE(NT) -Assessee, a 100 percent EOU, engaged in manufacture and export of readymade garments, filed a refund claim for relevant period for refund of unutilized Cenvat Credit of service tax paid for the period of April 2005 to march 2006. Said refund claim was rejected by adjudicating authority on ground that refund of service tax paid on input service was admissible only from 14.3.2006 as provided under Notification No. 5/2006-CE(NT) and not for period prior to it. Commissioner (Appeals) upheld the order. In the light of the decision of Fibres & Fabrics International (P.) Ltd. v. Commissioner of Customs (Appeals) 2009 -TMI - 33501 - CESTAT BANGLORE, in which held that on 1.9.2004 rule 5 itself for utilization of input credit and where such input service credit or input credit cannot be utilized, then same can be given as refund and just because notification has not been issued at that time one cannot deny benefit provided in rule, held that- appeal is allowed.

 

2010 TMI - 75974 - CESTAT, MUMBAI

KSH International Pvt. Ltd. Versus Commissioner of Central Excise, Belapur

Dated: 14-01-2010

Rebate of service tax - Rule 5 of the Export of Services Rules, 2005 - . Upon receipt of price of the goods, the suppliers paid commission to the appellant in convertible foreign exchange. Service tax was paid on these payments under Section 65(105)(zzb) of the Finance Act, 1994. - Adjudicating authority refused to accept the contention of the appellant that the service provided by them to the foreign suppliers had been delivered outside India and used outside India. In the result, the claim for rebate of service tax was rejected. Refund of service tax to the extent of Rs.8,02,364/- stands denied to the appellant for the period from 19.4.2006 to 31.12.2006.

Held that: The rendering of the service was complete only when the purchase orders canvassed by the appellant in India were received by the foreign companies. These purchase orders were, admittedly, received abroad. They were also, admittedly, acted upon by the foreign companies abroad. In other words, the benefit of the service provided by the appellant accrued to the foreign companies outside India. The condition in question stood fulfilled by the appellant. - Refund allowed - decided in favor of assessee.

 

2010 TMI - 75938 - CESTAT, BANGALORE

Glittek Granites Ltd. Versus Commissioner of Customs, Bangalore

Dated: 03-09-2009

Cenvat Credit- Notification No. 5/2006-CE(NT)- The appellant is an EOU engaged in the manufacture and export of granite slabs and tiles. They had filed a refund claim under rule 5 of the Cenvat Credit Rules, 2004 for refund of unutilized Cenvat Credit of Service Tax paid under the Service Tax Act, 1994. The said refund claim was rejected by the adjudicating authority on the grounds that refund of Service Tax paid on input service is admissible only from 14-3-2006 as provided under Notification No. 5/2006-CE (NT) and not for the period prior to it. The Commissioner (Appeals upheld the Order-in-Original. In the light of the decision of Fibres & Fabrics International (P.) Ltd. v. CC 2009 -TMI - 33501 - CESTAT BANGLORE, held that the order of Commissioner (Appeals) liable to set-aside and appeal is allowed.

 

2010 TMI - 75751 - CESTAT, BANGALORE

Dell International Services India (P.) Ltd. Versus Commissioner of Central Excise (Appeals), Bangalore

Dated: 23-06-2009

Rebate of Service tax-Export of services-Notification No. 12/2005 dated 19.04.2005- The appellant is a wholly owned subsidiary of M/s. Dell International Inc.-USA. They are a 100 per cent EOU with Software Technology Parks of India (STPI). They provide business process outsourcing services like call centre, IT support and back office data processing. These services are provided exclusively to Dell Group Companies and their customers outside India and all the services are exported out of India. The service fee for providing the services is the entire cost of the appellants with a marking of 10 per cent. The appellant exports 100 per cent of his services and the payment for these services exported is received in convertible foreign exchange. The input services were used for providing output services. In this case the appellant filed two rebate claims under Notification No. 12/2005-ST issued under Export of Service Rules, 2005 for the refund of the service tax paid on the input services for the period from 3/2005 to 9/2005 and 10/2005 to 2/2006, but this rebate claim was rejected on the following three grounds-(1) non-filing of necessary declaration, (2) to be filed before Jurisdictional Central Excise Authorities (3) appellant had not paid any service tax on the services exported by them. Held that- once the taxable services is exported and various input services have been utilized for providing the output service the appellant could be entitled for the rebate which is equal to the service tax paid on the input services. Also held that the appellant fulfill the five condition of the said notification no. 12/2005, thus the appellants are entitled for the rebate in respect of all the rebate claims. The appeal is allowed.

 

2010 TMI - 75681 - CESTAT, AHMEDABAD

AMEE CASTOR & DERIVATIVES LTD. Versus COMMR. OF C. EX., AHMEDABAD

Dated: 30-07-2009

Refund claim - Limitation - The appellant is engaged in the manufacture of derivative products of Castor Oil and export of the said goods out of India. In this case Tri.-(Ahmd.) held that the refund claims in the present case stand filed by the appellant on 16-6-08, even when the amended limitation period, which was introduced on 18-11-2008, was not available. The benefit of the subsequently enlarged period cannot be extended to the appellant thus, there is no merit in this appeal hence it is rejected. - Notification No. 41/2007-S.T. - Provisions of Section 11B are not applicable

 

 

2010 TMI - 75185 - CESTAT, NEW DELHI

NOBLE GRAIN INDIA PVT. LTD. Versus COMMISSIONER OF C. EX., INDORE

Dated: 26-08-2009

Refund of unutilized credit - appellants are engaged in the manufacture of Soya Oil exempted under Notification No. 3/2006, and De-Oiled Cake chargeable to nil rate of duty. The appellants has been exporting De-Oiled Cake under Bond. The appellants filed refund claim of unutilized Cenvat credit on input service i.e. GTA service, Insurance, Brokerage service, and Travel Agency service - Bombay High Court in the case of Repro India Ltd. v. UOI & Anrs., allowed the refund of unutilized Cenvat credit even on exempted goods or goods chargeable to nil rate of duty, exported under bond - Tribunal on the identical issue in the case of Punjab Stainless Steel Industries v. CCE, Delhi-I, reported in [2008 - TMI - 4544 - CESTAT, NEW DELHI] allowed refund claim, which was upheld by the Hon'ble Delhi High Court, as reported in the case of CCE, Delhi-I v. Punjab Stainless Steel - [2008 - TMI - 31677 - HIGH COURT DELHI]. - Held that appellant is eligible for refund of Cenvat credit in exported goods under Rule 5 of Cenvat Credit Rules

 

2010 TMI - 35520 - CESTAT, MUMBAI

COMMISSIONER OF C. EX., NAGPUR Versus NOBLE GRAINS INDIA PVT. LTD.

Dated: 12-06-2009

Respondent, as manufacturer of certain goods, took over liability to pay service tax on certain port services which were received by another party who exported the said goods. - Subsequent to such exports, the respondent-manufacturer filed refund claims for refund of the service tax paid on port services which were used for export of various consignments - After hearing both sides and examining the provisions of Notification No. 41/2007-S.T., I am of the prima facie view that the respondent-manufacturer of the goods cannot claim refund of service tax paid on port services received by another party - operation of impugned order granting such refund to manufacture stayed

 

2009 TMI - 35009 - CESTAT, AHMEDABAD

Aarvee Denims & Exports Ltd. Versus Commissioner of Central Excise

Dated: 21-07-2009

Refund of service tax - export goods - applicability of provisions of section 11B of Central Excise Act, 1944 - Notification No. 41/07-ST, dated 6-10-2007 - documentary evidence - held that - In any case, the documentary evidences showing the collection of Service Tax from the appellant would meet the requirement of the law and the appellants cannot be expected to produce evidence to show that the service provider has actually deposited the dues with the Government. I find that in the Budget of 2009, the difficulties being faced by the exporters for refund of Service Tax, has been taken note of and a simplified scheme has been laid down. It is the intention of the revenue that the exporters get refund of the Service Tax. Any reason to delay in grant of such refund or to deny the same would be frustrative of the legislative intent. - Refund allowed.

 

2009 TMI - 34778 - CESTAT, NEW DELHI

MICROSOFT CORPN. (I) (P) LTD. Versus COMMR. OF SERVICE TAX, NEW DELHI

Dated: 31-07-2009

Export of Service - Business Auxiliary Service - Foreign Principle - Amount Received from outside India - Services Provided in India - Prima Facie View - the principal to whom the marketing support is given by the service provider, ultimately makes available of goods or services to the consumers in India - . Similarly marketing support provided to the foreign principal as agent thereof also results with either ultimate supply of goods or provision of services to the consumers of India only and service reaches its destination in India to the intended consumer of the goods or services - held that - The benefit of service terminated in India only, without travelling abroad. The performance based service provided in India in terms of the sample agreement dated 1-7-2005 appears to have resulted with provision of service to the consumers in India. Therefore it appears that even the circular does not explain the position of law as claimed by the appellant to its advantage - No Export - stay granted partly

 

2009 TMI - 34223 - CESTAT, NEW DELHI

CST, DELHI Versus CONVERGYS INDIA PVT. LTD.

Dated: 18-05-2009

Cenvat Credit - Export of Business Auxiliary Service - Various Input Services used to provided output service - Department wants the rebate to be denied on merits on grounds like some services can not be considered as input services, some services are used only in maintenance and repair of capital assets, some of the services have no direct nexus with the out put services etc. The Department also wants the rebate to be denied for part of period on the ground that the required declaration has not been filed before export of the services - held that non-observance of a procedural condition in this case is of a technical nature and cannot be used to deny the substantive concession. Further, in respect of export, a liberal view requires to be taken. The non-fulfilment of the procedure cannot lead to denial of the benefit under the beneficial legislation providing for export benefits.

 

2009 TMI - 34217 - CESTAT, BANGALORE

LENOVO (INDIA) PVT. LTD. Versus CCE (APPEAL-II), ST, BANGALORE

Dated: 10-02-2009

Export of Business Auxiliary Service - The adjudicating authority in his order rejected the rebate claim on ground that the business auxiliary service is rendered by the appellant by way of promoting sale of the products of M/s. Lenovo, Singapore in India and as such the exemption available in terms of Export of Services Rules 2005 is not applicable. - When the recipient of the service is situated outside India, it cannot be said that service is delivered in India and the benefit of the service is derived only by the recipient company. Because of the booking of the orders, the foreign Company gets business. Therefore, the service is also utilized aboard - Benefit of export available.

 

2009 TMI - 33820 - CESTAT BANGLORE

NEO FOODS PVT. LTD. Versus CC (APPEALS), BANGALORE

Dated: 16-01-2009

100% EOU was exporting Gherkins in Brine attracting NIL rate of duty u/ch 2001000. Gherkins in Vinegar or Acetic Acid is exempted vide Notification No. 6/2006-CE - appellants availed credit of service tax and cess paid by them on input services for the period from 15.03.2006 to 31.10.2006 and 01.11.2006 to 31 01.2007. Since, the credit taken was not utilized, they applied for refund amounting to Rs. 9,43,693/- and Rs. 4,40,167/- in terms of Rule 5 of the CCR 2004 - Department denied the benefit on the ground that the final product was exempted and hence they are not eligible for availing cenvat credit u/r 6(1) - further the assessee did not file any bond for export - held that that Rule 6(6)(v) would be covering even all exports of final products by a 100% EOU and, therefore, would not be hit by Rule 6(1) as far as the entitlement to Credit on input/input service used in relation to the manufacture of final products exported by a 100% EOU is concerned - further to claim refund u/r 5, there is no pre conditions to file any bond under central excise

 

2009 TMI - 33500 - CESTAT NEW DELHI

NATIONAL ENGG. IND. LTD. Versus CCE, JAIPUR

Dated: 05-03-2009

Appellant is agent of GMC, USA and they procured orders/contracts from Indian Railways for GMC - GMC, USA have no any office of commercial or industrial establishment in India - held that just because commission was received by the Appellant through Indian Railways in Indian Rupees as Indian Railways made payment to GMC in foreign currency after deducting the commission payable to GMC, it cannot be said that the service provided by the Appellant to GMC, USA is not "export of service" u/r 3(3) of the Export of Service Rules - as per Rule 5 ibid, the Appellants were eligible for refund of the service tax paid on such service exported to GMC, USA

 

2009 TMI - 33480 - CESTAT BANGLORE

NIPUNA SERVICES LTD. Versus CCE, C & ST (APPEALS-II), HYDERABAD

Dated: 04-11-2008

Refund of credit on input services utilized in the service exported - Satyam (India) acts as an agent - receipt of foreign exchange by Satyam and converted and paid by Satyam to the appellants - what is received by the agent in foreign exchange would be deemed to have been received by the appellant for the purposes of EOSR - appellant not directly received the payment in foreign currency, not relevant - receipt for the services rendered was only in convertible foreign currency and therefore there is no violation of any of the rules - refund of input credit allowed

 

2009 TMI - 33236 - CESTAT BANGLORE

GOLDMAN SACHS SERVICES PVT. LTD. Versus COMMR. OF CUS., BANGALORE

Dated: 18-08-2008

Refund claim for refund of Service Tax paid on Input services used for the exports - refund denied on ground that appellants exported a service, which is clearly exempted - appellant claimed that the services are Business Auxiliary Services, according to the Department, the services are Information Technology Service - tribunal ruing rendered in case of. Deloitte Tax Service India Pvt. Ltd., holding that Back Office service was not Information Technology service and they are rightly covered under Business Auxiliary Service, is relevant - held that refund claims, which are filed after the amendment and satisfy every requirement of Rule 5 cannot be rejected merely because they relate to exports made prior to the date of amendment

 

2009 TMI - 32384 - CESTAT, AHMEDABAD

CAPIQ ENGINEERING PVT. LTD. Versus CCE,VADODARA

Dated: 16-10-2008

100% EOU - refund claim of unutilized credit was rejected on ground that services on which credit has been availed during the quarter April 2006 to June 2006 could not be wholly consumed for export done during the quarter in question - held that refund of unutilized credit balance at end of quarter is admissible, though services have not been fully utilized in that quarter as one to one co-relation between input service & exported good is not required - credit on mobile phone is also admissible