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2015 (11) TMI 218 - CESTAT MUMBAI

2015 (11) TMI 218 - CESTAT MUMBAI - TMI - Denial of refund claim - unutilized accumulated Cenvat credit - various input services used for export of services - Rule 5 of Cenvat Credit Rules, 2004 read with Notification 5/2006 CE(N.T.) dated 14/3/2006 - Held that:- The Appellants have claimed the refund of the untilized Cenvat credit earned on account of payment of Service tax on various input services such as, support service of business of commerce, Telecommunication service, renting of immovabl .....

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nt of the stipulated conditions. Notifications No. 5/2006-CE(N.T.) dated 14/3/2006 provides the conditions, safeguards and limitation for obtaining refund of such credit. In view of the above, the contention of the adjudicating authority that the said advisory services i.e. Banking & Other Financial Services are used in India and as such the benefit of these services is accruing in India and not outside India does not appear to be correct and it is not tenable. - refund allowed - Decided in favo .....

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order-in-original and allowed the appeals of the appellant with consequential relief. 2. The fact of the case is those respondents are engaged in the provision of advisory services falling in the category of Banking and Financial services and Renting of Immovable Property Services. They filed five refund claims for total sum of ₹ 28,04,138/- from time to time under Rule 5 of Cenvat Credit Rules, 2004 read with Notification 5/2006 CE(N.T.) dated 14/3/2006 for unutilized accumulated Cenvat .....

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vice which are exported as required under Notification NO. 5/2006-CE(N.T.). Aggrieved by the said adjudication order dated 20/8/2009, appellant filed appeals before the Commissioner(Appeals), who allowed the appeal of the appellant by setting aside the order in original. Therefore, aggrieved by the said impugned order, the Revenue filed these appeals alongwith stay application. 3. Shri. B.K. Iyer, Ld. Superintendent (A.R.) appearing on behalf of the Revenue reiterates the ground of appeals. He f .....

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it clearly appears that the services were provided in India therefore it cannot be said that services have been exported by the respondent. He further submits that lower authority/ adjudicating authority, since rejected the claim on this account only, has not verified that the admissibility of the input services on which Cenvat credit was taken. It is his submission that since the output services has not been exported Ld. Commissioner has erred in allowing the appeal of the respondent therefore .....

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the respondent was provided in India therefore it cannot be treated as export of service in terms of Export of Services Rules, 2005. I find that it is not under dispute that though the services of analyzing, advising, reporting etc carried out in India but the same has been provided to company located in USA therefore service recipient is in foreign country. Whatsoever services were performed by the respondent has been received by foreign company i.e. M/s. Tiger Iron LLC Co., USA. Against these .....

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spondent although provided in India but it was received and used by the foreign person out side India and the service charges have been received by the service provider in convertible foreign exchange. In view of this undisputed facts, there is no doubt that the output service of the respondent have been exported in accordance with the Export of Service Rules, 2005. As regard the Second issue regarding the admissibility of input service though the original authority has not gone through the said .....

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cation in Form-A alongwith the copies of the relevant invoices with the copies of agreements have been produced and sale proceeds in respect of the output services exported have been realized by the Appellants. It is further seen that the Adjudicating authority has stated that the refund of Cenvat is governed under Rule, 5 of Cenvat credit rules, 2004, in respect of where any input or input services is used in providing output service which is exported. The services so provided by the Appellants .....

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ss consultant service, courier services and rent-a-cab service, house keeping/cleaning Services, pest control etc. These input services appeared to have been used for providing output service exported. The appellants has submitted their out services. Viz. service provided by them to their investment manager, were in the nature of Investment Advisory Service under Banking and Financial Services which had been exported out of India and sales procceds thereof had been received in convertible fore .....

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hange. The contention of the Appellants appear to be maintained and acceptable. 8. It is to be seen that the CBEC, while clarifying the applicability of the provisions of Export of Service Rules, 2005 vide their Circular No. 111/05/2009, in para 2(iii) of the said circular, have clarified the position in respect of Category-III[(Rule 3(iiii)] that for the remaining services which would include knowledge or technique based services, which are not linked to an identifiable immovable property or wh .....

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III, the relevant factor is the location of service receiver and not the place of performance. In this context the phrase used outside India is to incorporated to mean that the benefit of service should accrue out side India. Thus, for the Category III services, it is possible that the export of service have taken place even when all the relevant activities take place in India so long as the benefit of these services accrue out side India. In all the illustration mentioned in opening paragraph, .....

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