TMI Blog2014 (12) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... e is received in convertible foreign exchange. As regards the receipt of the payment in convertible foreign exchange, there is no dispute. As regards the first condition, when the service provider is located in India and the service recipient is located in abroad, use of the service rendered by the service provider is by the recipient located abroad and therefore, the services can said to be used outside India. Respondent herein undertakes only exports of services and is not rendering any services in India. Therefore, all the input services on which he has taken the credit is in relation to the exports made by him. Consequently the appellant would be eligible for refund of the input service tax paid under Rule 5 of the Cenvat Credit Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir holding companies and affiliated companies situated in abroad. They undertook testing of the products manufactured by the foreign entities and gave advice with regard to improving the quality of the product. Similarly, they also undertook identification of potential customers in India, market potential for products in India and similar activities for the sale of the products in India manufactured by the foreign affiliates and thereafter, they filed the refund claim towards refund of input service credit taken by them. The Revenue was of the view that since the activity is undertaken in India, there is no export of service and therefore, the question of sanction of any refund would not arise. The Revenue also took objection to refund of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be said to be used outside India. Adopting this logic, it is submitted that in the present case also when the testing is done in India and the market survey/works have been carried out in India, it cannot be said that the services have been delivered outside India. It is his further contention that in respect of input services on which the refund has been claimed, the documents were examined by the adjudicating authority and it was found that the invoices were not in the name of the respondent. No nexus could be established between the input service taken and the output service rendered. This aspect has been completely overlooked by the lower appellate authority who has not given any findings in this regard. Therefore, the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , when a product is tested and results are obtained and advice for the improvement of quality of the product is given, the use of the advice is made by the service recipient abroad and therefore, the service is used outside India. Similarly, when a market research is done in India and the results are communicated, the use of the data generated is by the recipient situated outside India and therefore, it is used outside India. So is the case in respect of market promotion of the products of the foreign affilitates. Thus, the usage is by the recipient who is located outside India and therefore, the services have to be construed as used outside India. The learned Counsel relies on the decision in the case of Gap International Sourcing (India) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble High Court held that the services rendered would amount export and would not be liable to tax in India. The ratio of these decisions would apply squarely to the facts of the case and therefore, the order of the lower appellate authority deserves to be upheld. 5. We have carefully considered the submissions made by both the sides. 5.1 We note that the services rendered by the appellant, namely, Business Auxiliary Service and Scientific and Technical Consultancy Service come under Rule 3(i) (iii) of the Export of Service Rules. To qualify as exports, two conditions are required to be satisfied, that is, such services should be provided from India and used outside India and the payments for the service is received in convertible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in the case of CST, Delhi Vs. Convergys India Pvt. Ltd. 2009 (16) STR 198 (Tri-Del) observed that there cannot be two different yardsticks, one for permitting the credit and the other for eligibility for granting rebate. Whatever credit has been permitted to be taken, the same is permitted to be utilised. When the same is not possible, there is provision for grant of refund or rebate. Without questioning the credit taken, the eligibility to rebate cannot be questioned. In view of the above position, we do not find any merit in the contention of the Revenue that the appellant is not entitled for the rebate. Thus, we do not find any merit in the appeal filed by the Revenue, accordingly we dismiss the same. 6. Since the appeal it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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