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2016 (8) TMI 589 - CESTAT NEW DELHI

2016 (8) TMI 589 - CESTAT NEW DELHI - TMI - Cenvat credit - Refund wholly owned subsidiary Export of call centre services remuneration given by the holding company whether the holding company is service recipient for the purpose of Rule 3(2) of the Export of Service Rules, 2005 or the customers situated in and outside India Held that: - service tax is a "destination based consumption tax", the test to be applied for ascertaining the actual consumer of service is the person who pays for .....

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t credit allowed appeal allowed decided in favor of appellant. - Service Tax Appeal No.ST/52176/2015-EX [SM] - FINAL ORDER NO. 52495/2016 - Dated:- 8-3-2016 - Mr. S.K. Mohanty, Member (Judicial) Present for the Appellant : Shri. R. Muralidharan, Consultant Present for the Respondent: Shri.Vaibhav Bhatnagar, D.R. ORDER This appeal is directed against the impugned order dated 13.03.2015 passed by the Commissioner (Appeals-II), Service Tax, Gurgaon, upholding rejection of refund application f .....

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eing remunerated by B.A. on cost plus mark-up basis. The service provided by the appellant falls under the taxable category of 'Business Auxiliary Service'. During the period October to December' 2009, the appellant had filed the refund application for un-utilized Cenvat credit of service tax taken on input service lying in its account, as it had exported the output services without payment of service tax. The refund application was rejected vide adjudication order dated 09.06.2014. .....

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ms, B.A. is the service recipient ad not its customers; that B.A. is responsible for making payment in lieu of the services provided on its behalf and under its instructions; that the payment has been received in convertible foreign exchange. Thus, according to the ld. consultant, since the appellant is fulfilling the conditions of Rule 3(2) of Export of Services Rules, 2005, refund claim of accumulated Cenvat credit is admissible to it. To support his stand that B.A. located in UK is the actual .....

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ded by the appellant was in India and hence, the condition of 'used outside India' specified in Rule 3(2) of the Export of Service Rules, 2005 has not been fulfilled by the appellant. 5. I have heard the ld. counsel for both sides and examined the records. 6. The issue involved for consideration by this Tribunal is who is the actual service recipient for the purpose of Rule 3(2) of the Export of Service Rules, 2005? whether it is B.A. located in UK or its customers located in India as we .....

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ant had provided Call Centre Services to B.A. based in UK. There is no contract/agreement between the appellant and the customers of B.A. to provide any service. B.A. has made the payment to the appellant for the services provided to the third party (customers of B.A.) in convertible foreign exchange. Since, service tax is a "destination based consumption tax", the test to be applied for ascertaining the actual consumer of service is the person who pays for the service and not the pers .....

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portion of the order is extracted below:- Further as already explained PML is getting their payment from Western Union located abroad and it is very obvious that the service is used by the person making the payment and not the recipient of money in Indian who does not make any payment. The Western Union is getting their payment from the person remitting money abroad and hence obviously the services rendered by PML is ultimately used by the person remitting the money from abroad. So we come to t .....

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