TMI Blog2017 (3) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue was similar where the the Tribunal has gone on to decide that the services rendered to principal in USA, who had paid for the services in foreign exchange, has to be considered as export of service. Input services - Held that: - the Tribunal decision in the case of Convergys India Pvt. Limited [2009 (5) TMI 50 - CESTAT, NEW DELHI], relied in which identical issue had also been examined and was held that that there cannot be two different yardsticks, one for permitting credit and the other for eligibility for granting rebate. Whatever credit has been permitted to be taken, the same are permitted to be utilized and when the same is not possible there is provision for grant of refund or as rebate - refund allowed. The appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed to the extent of ₹ 36,14,123/- was rejected by the Original Authority and such rejection was upheld by the impugned order. Hence the present appeal. 3. With the above background, heard Shri Harish Bindumadhavan, Id. Advocate for the appellant and Shri M.R. Sharma, Id. DR for the Revenue. 4. The refund has been disallowed mainly for the following reasons:- (i) The services rendered do not qualify the term Export as stipulated in Export of Services Rules, 2005. (ii) Some of the input services do not qualify the definition of input service in terms of Rule 2(l) of Cenvat Credit Rules, 2004. 5. The Id. Advocate for the appellant has countered both the ground with following reasoning that service exported to TSS As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at though the payment for the services has been received in convertible exchange, the lower authorities have recorded that there is no co-relation between the export invoices and FIRCs. 8. The appellant has undertaken the service of outsourcing for its principal situated in Hong Kong. The consideration for such services have been received from the principal abroad in convertible foreign exchange. Since they were not in a position to utilize the accumulated Cenvat credit, refund claim has been filed in terms of Rule 5 of Cenvat Credit Rules. The present dispute is on disallowance of such refund claim. One of the main grounds for disallowing such credit is that the services rendered in India. The activities such as rendering various mercha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to principal in USA ,who had paid for the services in foreign exchange, has to be considered as export of service. Since the facts in the present case are identical, I am inclined to follow the decision of Division Bench and conclude that the Business Auxiliary Services rendered by the appellant, to their principal in Hong Kong is to be considered as, service provided from India and used outside India. 9. Now, I turn to the ground that some of the input services do not qualify the definition of input services in terms of Rule 2(l) of Cenvat Credit Rules, 2004. The Id. Counsel relied upon the Tribunal decision in the case of Convergys India Pvt. Limited (supra), in which identical issue had also been examined. The Tribunal in that case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eign exchange is relatable to foreign export invoices. Since the receipt of foreign exchange has not been explained convincingly to the Id. Commissioner (Appeals), I find it proper to remand the matter to the Original Adjudicating Authority who will extend opportunity to the appellant to submit necessary documents certified by the statutory auditor to satisfy the requirement in this connection. 11. In view of the above, I hold that the appellant will be entitled to refund under Rule 5 of Cenvat Credit Rules, 2004. However, for verification of receipt of foreign exchange and connected matters, the case is remanded to the Original Adjudicating Authority with directions to finalize this long pending issue within two months from the date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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