TMI Blog2014 (8) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... vices of the insurance agents. In these terms, whatever credit is taken by the appellant is nothing but the refund of tax erroneously paid by them - CENVAT Credit taken by the appellant is nothing but refund of the service tax paid by them on the services on which they were not required to pay service tax - Decided in favour of assessee. - ST/515/12- Mum - Final Order No. A/1255/2014-WZB/C-I(CSTB) - Dated:- 23-7-2014 - Ashok Jindal And P S Pruthi, JJ. For the Appellants : Shri V Sridharan, Sr Adv. Shri Akhilesh, Adv. For the Respondent : Shri D Dewalvar, Addl Commissioner (AR) PER : Ashok Jindal The appellant is in appeal against the impugned order denying CENVAT credit taken by them. 2. Brief facts of the case ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kashmir and therefore, the appellants are not paying service tax on the services provided by them in the State of Jammu and Kashmir. The appellants also appointed insurance agents in Jammu Kashmir. The said agents were procuring the policies for the clients/assets located in Jammu and Kashmir. Though the services provided by the agents in Jammu and Kashmir were also not taxable, the appellants have wrongly discharged the service tax as a recipient of service and taken CENVAT Credit of the same as input service. During the course of audit, the department took objection that the appellants have wrongly availed the CENVAT Credit on service tax paid on insurance auxiliary services rendered in Jammu Kashmir on the ground that the services ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l relief. 5. On the other hand, the learned A.R. appearing on behalf of the Revenue submits that in this case the insurance auxiliary service agents are located in the State of Jammu Kashmir and provided services of procuring the policies for the clients/assets located in Jammu and Kashmir but the services received by the appellants are to be seen. Therefore, as the services have been provided in the state of Jammu and Kashmir the said services are exempt from the service tax. In that context, the service tax if at all paid by the appellant is not available as CENVAT Credit to the appellant. Therefore, the learned Commissioner has rightly denied the CENVAT Credit to the appellant. In these circumstances, the impugned order is required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shment, then the establishment who is directly concerned with the provision/receipt of the service will be the deciding factor. Explanation in Section 65 (105) of the Finance Act, 1994 provides as under:- Explanation - For the removal of doubts, it is hereby declared that where any service provided or to be provided by a person, who has established a business or has a fixed establishment from which the service is provided or to be provided, or has his permanent address or usual place of residence in a country other than India and such service is received or to be received by a person who has his place of business, fixed establishment, permanent address or as the case may be, usual place of residence, in India, such service sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and elsewhere, the country, where the establishment of the provider of service directly concerned with the provision of service is located, shall be treated as the country from which the service is provided or to be provided. (2) Where a person is carrying on a business through a permanent establishment in India and through another permanent establishment in a country other than India, such permanent establishments shall be treated as separate persons for the purposes of this section. Explanation 1. A person carrying on a business through a branch or agency in any country shall be treated as having a business establishment in that country. Explanation 2.-Usual place of residence, in relation to a body corporate, means ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the departmental authorities in rejecting a contention raised by the assessee, grant of relief to him on anther ground is justified, it would be open to the departmental authorities and the Tribunal, and indeed they would be under a duty to grant that relief. 7.6 We further find that in the case of Nitco Tiles Ltd. v. CCE Mumbai - 2007 (220) ELT 827 (Tri. Mum), this Tribunal observed as under:- Further, the bar of unjust enrichment will also not apply in the present case. The appellants have taken credit of the tax paid by them; therefore the same cannot be said to be passed on to the customers. In these circumstances we hold that the CENVAT Credit taken by the appellant is nothing but refund of the service tax paid by them ..... X X X X Extracts X X X X X X X X Extracts X X X X
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