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2019 (1) TMI 720 - AT - Service TaxRefund claim - export of service - intermediary - place of provision of service - Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No.27/2012-C.E. (N.T.), dated 18.6.2012 - denial on the ground that the services provided by the appellant are not to be considered as export of service inasmuch as the services were executed in India and since, the appellant was the intermediary, the place of provision of service should be considered as provided in India - Held that:- It is an admitted fact on record that the consideration received by the appellant for providing the services was based upon cost plus markup and is nowhere connected with the main supply of goods. In other words, the main supply may or may not happen and thus, cannot be directly correlated with the service provided by the appellant. Thus, the appellant is not acting as a bridge between the overseas group entities and supplies made to their customers in India and accordingly, it cannot be said that the appellant has provided intermediary service and should be governed under the provisions of Rule 9 of the rules. The services were in fact used for business purpose and not for the personal use or for providing welfare measures to the employees. Thus, there is nexus between the input services and the output service provided by the appellant. Since the appellant was not in a position to utilize the accumulated cenvat credit, it should be entitled for refund of service tax under Rule 5 of the Cenvat Credit Rules. Input tax credit - unregistered premises - Rule 3 of the Cenvat Credit Rules - Held that:- Rule 3 provides that service tax paid on input service by the service provider of output service should be allowed for cenvat benefit. The said rule nowhere specifies that credit should only be available for the services used/utilized in the registered premises alone. Since registration of premises is not a pre-requisite condition for claiming input tax credit, denial of the refund benefit on such ground is not legally sustainable. Appeal allowed - decided in favor of appellant.
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