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2015 (11) TMI 226 - CESTAT MUMBAI

2015 (11) TMI 226 - CESTAT MUMBAI - TMI - Refund - Unutilized CENVAT Credit - Export of service or not - research and analysis regarding investment was carried out in India but that services are provided to US based entity and the recipient is a US based entity - Held that:- Services were carried out in India but the recipient is outside India and, therefore, the services provided by Indian entity deemed to be used by the person located outside India and, therefore, it satisfies the terms used o .....

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he impugned order passed by the Commissioner (Appeals) is not sustainable and the same is set aside - Decided in favour of assessee. - APPEAL NO: ST/88567/2014 - Order no. A/1076/15/SMB - Dated:- 16-4-2015 - Ramesh Nair, Member (Judicial) Shri Prasad Paranjape, Advocate for the appellant Shri A.B. Kulgod, Asstt. Commissioner (A.R.) for the respondent JUDGEMENT The appeal is directed against Order-in-Appeal No: PD/ST-I/571/2014 dated 28/04/2014 passed by the Commissioner of Central Excise (Appeal .....

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ment, the appellant is required to provide the following services to Apollo Management VII L.P. (i) Providing reports on a timely basis containing news and information on investment areas, industries, companies and/or other specified areas; (ii) Providing non-binding advisory services in respect of potential investment and divestment opportunities in India or elsewhere, including advice on the structuring of such opportunities; (iii) Research, analysis and identification of investments and, wher .....

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ment VII L.P. used the advice received from the appellant in further advising to their customers in market in making investments in India. Since the appellant is providing the aforesaid services to Apollo Management, who is located in US, the services are covered under export of services and accordingly the appellant has filed refund claims in respect of input services under Rule 5 of CENVAT Credit Rules, 2004 for an amount of ₹ 27,26,892/-. After raising some queries by the sanctioning au .....

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said order, the appellant is before me. 4. Shri Prasad Paranjape, learned counsel for the appellant submits that the Commissioner (Appeals) held the refund claim inadmissible on the ground that the services provided to M/s. Apollo Management, US were used in India and, therefore, the same does not qualify as export of service. In this regard he submits that the service-provider is the appellant in India and the service-recipient is located in USA. The services are received by US based entity, M .....

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of a coordinate bench of this Tribunal in the case of Amba Research (India) Pvt. Ltd. vs. Commissioner of Service Tax, final order No. 21741/2014 dated 24/09/2014. He submits that the fact of the said judgment is absolutely identical to the present case. He also placed reliance on the judgment of Commissioner of Service Tax, Mumbai vs. Greater Pacific Capital Pvt. Ltd. 2014-TIOL-1726-CESTAT-MUM. He also referred to Boards Circular No. 111/5/2009-S.T. dated 24/02/2009 and Circular No. 141/10/201 .....

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AGM India Advisors Pvt. Ltd., to M/s. Apollo Management VII L.P. is export of service or otherwise and consequently eligibility to refund. As per the facts, the appellant is providing management consultancy services such as providing reports of information on investment areas, industries, companies, non-binding advisory service in respect of potential investment and investment opportunities in India. The research analysis and identification of investment opportunities providing necessary reports .....

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on located in India and nobody in India is concerned about the services. Since the services are provided to US based firm it is that firm, M/s. Apollo Management VII L.P. who is the sole recipient of the services and on the basis of these services, M/s. Apollo Management is further providing services to their clients, i.e., other foreign based companies. That shows, the services provided by the appellant is consumed by M/s. Apollo Management , US for providing his output services to US based com .....

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Holdings Inc. The refund claim has been denied on the ground that the services have been entirely utilized in India. According to the agreements, we find that the buyer namely M/s. Amba Holdings Inc. is engaged in the business of providing services in investment research, outsourcing of financial analysis and sub-contracting services. It was the submission of the learned Consultant that the services provided by the appellant in the form of studies and submission of reports which are in turn prov .....

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d paragraph of the agreement which is relevant and where exactly it emerges from the agreement that services are to be used in India. Moreover, as per Circular. issued by the Board in 2009 and considered in the Interim Order (supra), if the beneficiary is located outside, refund is admissible. It is not the case of the Revenue that consideration has not been received in foreign currency. We also find that this Tribunal in the case of CST Mumbai Vs M/s Greater Pacific Capital Pvt. Ltd. [2014-TIOL .....

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(1)(iii) read with Rule 4 of the Export of Services Rules, 2005 or not and consequently, whether the respondent is entitled for refund claim or not. 10. It is an admitted fact that the respondent has provided investment advisory service to GPC Management located outside India and does not have any business in India. It is also not in dispute the respondent has received the payment in convertible foreign exchange. Therefore, as per Rule 3(1)(iii) of the above said Rule, the services provided by t .....

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se of Vodafone Essar Cellular Ltd. - 2013 (31) STR 738 this Tribunal held that telecom services provided to inbound roaming international consumers would qualify as export of service. In the said case, Vodafone provided telecom services in India to international in-bound roamers registered with foreign telecom network operators but located in India at the time of providing of the said services. In that case this Tribunal held that Vodafone rendered the telecom service, in the context of internat .....

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