2020 (9) TMI 259 - CESTAT MUMBAI - Service Tax

Head Note / Extract:
Refund of the accumulated Cenvat credit - Place of provision of service - intermediary service - rejection of refund on the ground that the services provided by the Appellant are not to be considered as ‘export of service’ as the services were executed in India - Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No. 27/2012-C.E. (N.T.), dated 18th June 2012 - period from October 2014 to September 2015. Whether the services provided by the appellant qualify as ‘export of services’or ‘intermediary services’? - HELD THAT:- CBEC vide Guidance Note dated 20th June 2012, had few conditions which are to be satisfied for a service to be designated as export of service - In the present case, the service provided by the Appellant satisfies all the above mentioned conditions and hence, is an export of service. The Appellant is situated in taxable territory, the recipient of service is located outside India, the service provided by the Appellant does not fall under the negative list, the place of provision of service as per Rule 3 of the POPS Rules, 2012 is outside India, the payment has been received by the Appellant in convertible foreign exchange and the Appellant and the service recipient are separate legal entities. However, for removal of doubt, it is pertinent that the service provided by the Appellant must at the same time also not qualify as intermediary service. Thus, the service provided by the Appellant has been provided on its own account and therefore, does not qualify as intermediary service. Input service having no nexus with output service - HELD THAT:- The services were availed for right to use certain footage in the film, which were brought from an online vendor database and to enable the Appellant to undertake production work. Therefore, such services were in relation to the output service provided by the Appellant and therefore, are input services as per the Cenvat Credit Rules, 2004. Credit availed on the basis of three invoices amounting to ₹ 60,578/- which were not issued in favour of the Appellant - HELD THAT:- As such invoices were not issued in favour of the Appellant, it is not open to the Appellant to avail credit on the basis of such invoices. Therefore, the credit availed to the extent of ₹ 60,578/- is liable to be denied. Appeal allowed in part.