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2022 (9) TMI 522 - AT - Service TaxRefund of CENVAT Credit - export of services - denial of credit on the ground that the service provider is not registered with the department - Rule 4 of Service Tax Rules, 1994 - HELD THAT:- Mere perusal of Rule 5 of the 2004 Rules, would, inter alia, show that where a service provider, provides an output service, which is exported, without payment of service tax under a bond, he would be entitled to refund of Cenvat credit, as determined by the formula provided in the Rule. What is relevant to note is that Rule 5 of the 2004 Rules does not stipulate registration of premises as a necessary prerequisite for claiming a refund - if Notification No. 27/2012 dated 18.06.2012 is perused it shows that insofar as the provider of output service is concerned, for seeking refund of Cenvat credit, is required to file an application in prescribed form i.e. Form A (annexed to notification) before Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise as the case may be. Insofar as the jurisdiction of competent officer is concerned, the same is fixed, in consonance with the location of the registered premises of the service provider from which the output services are exported, clearly the notification does not prohibit the grant of Cenvat credit even if the premises are not registered. The fixation of jurisdiction of the competent officer, cannot be read in a manner that it obliterates the rights of the exporter of output services to claim refund of Cenvat credit. Whether the supply of service by a subsidiary/sister concern of a foreign company in India which is incorporated under the laws in India to a foreign company incorporated under laws of a country outside India will hit by condition (v) of sub- section 6A of Service Tax Rules, 1994? - HELD THAT:- The services rendered would be treated as "Export of services" when clause (a) to clause (d) refers to provider of service is located in the taxable territory and recipient of service is located outside India and the service is not a service specified in Section 66D of the Act and the place of the provision of the service is outside India and as per clause (e) the payment for such service has been received by the provider of service in convertible Foreign Exchange - Item (b) of the explanation 3 stipulates that an establishment of a person in taxable territory and any of his other establishment in a non-taxable territory shall be treated as establishments of distinct persons. Hence, by no stress of imagination, it can be said that the rendering of services by the petitioner No.1 to its parent Company located outside India was service rendered to its other establishment so as to deem it as a distinct person as per Item (b), explanation 3 of clause (44) of Section 65B of the Act, 1994 the petitioner No.1 which is an establishment in India, which is a taxable territory and its holding Company, which is the other company in non taxable territory cannot be considered as establishments so as to treat as distinct persons for the purpose of rendering service. In the present case there is no denial that services have been provided from India and have been used outside India and that the payment has been received in convertible foreign exchange. It stands clear that the services in the present case amounts to export of service - Regarding the allegation of absence of nexus between the export and service, in some of the input services he submits that Tribunal in the case of Apotex Research Pvt. Ltd. v. CC, Bangalore [2015 (3) TMI 346 - CESTAT BANGALORE], held that there is no need to establish nexus between input services and output services at the time of filing of refund claim. Since the issue of jurisdiction was not specifically taken in the show cause notice the adjudication on this point against the assessee is not sustainable. The appellant since admittedly has centralized registration in terms of sub clause (2) and (3) of Rule 4 is Noida unit was not required to be registered. Refund claim should not have been rejected on this ground. The services provided by the appellant amounts to export of service as were received by the company located outside the taxable territory irrespective those were the group companies of the appellant. The order under challenge is held to be the result of wrong interpretation of the relevant provisions and notifications - Appeal allowed.
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