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TMI Blog2014 (7) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... nance Act, 1994, should not entertain the rebate claim covered by first proviso to Section 35B (1) of Central Excise Act, 1944, in the appellate jurisdiction under Section 86 of Finance Act, 1994 because revisionary jurisdiction and appellate jurisdiction are clearly demarcated in law and nature and character thereof in common law is well understood. Consequently, Revenue succeeds in saying that rebate claim matters should go to revisionary jurisdiction. We hold accordingly. Single bench not having dealt jurisdiction issue in one of the appeals of the appellant that has no significance for our consideration and plea of judicial insistency is base less. 3. Learned counsel would submit that the matter was carried before the Hon'ble High Court and Hon'ble High Court after considering the issue passed a detailed order dated 20.03.2014 in W.P. (C) 6224/2013. Since the order of the Tribunal has been set aside, the matter can be decided by this Tribunal. Accordingly the preliminary objection is rejected and the appeals are taken up for hearing. 4.1. GE India Technology Centre Pvt. Ltd., Bangalore (the appellant) is filing the present appeal against the order-in-appeal No. 49/2009 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... frame and in accordance with the other conditions laid down in service requests. 4.5. During the course of providing and exporting the aforesaid taxable Scientific or Technical consultancy services to GE USA and their overseas entities, the appellant procured and used various input services and availed of the credit of the service tax paid thereon in accordance with the provisions of the CENVAT Credit Rules, 2004 (the Credit Rules). The credit so taken was utilized by it for payment of service tax, education cess and higher education cess on the export of services to GE USA and its overseas entities. In respect of the services exported by the appellant during the months of February and March, 2008 it paid service tax and cesses aggregating to Rs. 9,47,42,681/- by utilizing CENVAT credit of Rs. 9,47,32,681/- and paying the remaining amount of Rs. 10,000/- in cash. 4.6. The appellant on 7 May 2008 filed with the jurisdictional Deputy Commissioner, Service Tax (DCST) a rebate claim for the amount of Rs. 9,47,42,681/-. 5. The refund claim was rejected on the following grounds: i. the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 2005 has been determined to have been received outside India i.e. consumed outside India, the conditions in Rule 3 (2) regarding their delivery outside India and "use outside India" are automatically satisfied as, as explained in para 8.1 above, in the context of services, the receipt, consumption and delivery of the service is the same. Therefore the condition regarding delivery of service being outside India and use of service being outside India prescribed in Rule 3 (2) of Export of Service Rules, 2005 were superfluous and for this reason only, these conditions were deleted, first, the condition regarding delivery of service being outside India was deleted w.e.f. 1/3/07 and thereafter the condition regarding use of service being outside India was deleted w.e.f. 27/2/10. These amendments, therefore, have to be treated as clarificatory amendments. Therefore if some service covered by Rule 3 (1) (iii) of Export of Service Rules, 2005, i.e. service in relation to business or commerce, has been provided by a person in India to a company located abroad, not having any branch or establishment in India, for use in its business, the service provided in India shall be treated as export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agents of WU is not WU but the persons in India receiving the money sent by their friends and relatives abroad through WU and their agents and this is not the export of service. This plea is totally incorrect. The service recipient is the person on whose instructions/orders the service is provided, who is obliged to make the payment from the same and whose need is satisfied by the provision of the service. WU having accepted money along with commission from their customers abroad for delivery to their intended beneficiaries in India are under obligation to get the money delivered in India and for this purpose, they have engaged the agents, as WU does not have any business establishment or offices in India to discharge this obligation directly. The obligation of WU to deliver the money received by them from their customers abroad to their intended beneficiaries in India is discharged by the agents either directly or through sub-agents and for this the agents get a commission from WU. Thus it is WU who have received the services provided by agents and have used this in relation to their business of money transfer and therefore have to be treated as recipient and consumer of service n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... According to the Revenue, the agreement between GE USA and GE ITC, GE ITC is an extended arm of GE USA and is established in India to look after the interests of GE USA in relation to business or commerce. 9. We have gone through the agreement and we do not find any point there which results in the conclusion taken by the learned Commissioner in the order. The agreement is between GE USA and GE ITC. GE USA is incorporated under the laws of State of New York and GE ITC is a company incorporated under the Companies Act 1956. This itself shows that both are separate entities. No other evidence has been taken into account to show that GE ITC is an extended arm. Even if it is a subsidiary company, as submitted by the learned counsel, a subsidiary company is considered as a separate entity in the eyes of law. Further we also do not find any basis to come to the conclusion that GE ITC was set up to look after the interests of GE USA in relation to business or commerce. In para 1.1 the role of GE ITC has been indicated and it requires GE ITC from time to time and on a request made by GE USA to provide the services. On the one hand they are required to carry out research and development in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal authority in accordance with the decision taken in the above decision (order-in-appeal No. 139/2013). He submits that since the amount involved is small, the appellant is willing to forego the same in respect of services the credit on which has been held to be inadmissible on the ground of nexus between the input service and output service by the Commissioner. He also submits that this decision in order-in-appeal No. 139/2013 has not been appealed against by the department. We consider these submissions to be reasonable and fair. Accordingly we set aside the impugned order and remand the matter to the original authority with the following observations: a) Appeal is allowed with consequential relief if any to the appellants except as regards the ground of nexus between input services and output services which as requested by the counsel shall be decided in accordance with the order-in-appeal 139/2013. As regards verification of documents, quantification of amounts, these aspects have not been completed since the adjudication order was passed on the basis of principles and not on the basis of verification of documents. This exercise shall be carried on in accordance with law. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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