TMI Blog2017 (9) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice located outside India. It is of no consequence, whether such advisory service received by the recipient located outside of India, is used by recipient for making investment decision, for making investment in India. Unjust enrichment - time limitation - Held that: - neither there is any question of unjust-enrichment, nor the refunds of Cenvat credit under Rule 5 of CCR, 2004, are hit by time bar, as no time limit has been provided for utilization of Cenvat credit, once it has been taken. The appellant in the facts and circumstances has admittedly proved that due to its business being export of service, have been unable to utilize the Cenvat credit taken. Accordingly, they are entitled to refund of Cenvat credit without any time bar. Jurisdiction - Held that: - some of the issue not raised and/or decided in the impugned orders are wholly without jurisdiction being- (i) service provided do not classify as export of taxable service, as per Export of Service Rules, as no such allegation is made in show cause notice for the period July, 2007 to September, 2007. Scope of SCN - Held that: - the adjudication orders for the period July' 11 to March' 12, being refund claim da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund claims filed under Rule-5 of Cenvat Credit Rules, 2004 read with notifications are as follows: - - Output services provided do not qualify as export of taxable services as per Export of Service Rules, 2005 - Documentary evidence not provided for export of banking and other financial services as per Rule-3 of Export of Service Rules. - BCP-appellant has received consideration only for out of pocket expenses and has not received consideration for services rendered. - The investment manager located abroad and the appellant are related parties, having mutual interest in each others business operations. - Refund claim is hit by unjust enrichment as the services are not exports. - ST-3 return does not disclose the services exported, but discloses the expenses recovered which are more than the actual expenses. Balance sheet does not disclose the refund claim to be receivable. - Full consideration not received in convertible foreign exchange. - Appellant have not produced evidence stating that remittances received is towards consideration for export of services and not only towards reimbursement of out of pocket expenses. - Value of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal held that investment advisory services shall be considered as exports, if the client is located outside India. Accordingly, refund was held grantable. Further, in the case of M/s Paul Merchants Ltd Vs CCE, Chandigarh , this Tribunal have held that services provided by the agents and subagents to customers located outside India qualified as Business Auxiliary Services and amounted to exports. 4.1. So far the issue of non-receipt of consideration or receipt of part of the Consideration in foreign exchange, the learned counsel explains that the consideration is received in the following 2 modes:- Mode 1) The appellant received the remittance in convertible foreign exchange, which is credited to their account by their banker and the banker issues the remittance certificate or FIRC. Mode 2) The appellant receives consideration or part of the consideration in INR, in such case, The service recipient deposits fee in Nostro Account of appellant's local bank, then the appellants local bank issues FIRC to the appellant. Both the method; of remittances are duly recognized under the Foreign Exchange Management Act, read with Notification No. FEMA 14/2000-RB dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel further urges that the appellant have made proper disclosures in detail, of export turnover, as regards fees and expenses incurred during the course of providing investment advisory services, in the returns. Further, the details of collection have also been disclosed in the service tax returns. Further, there was no such allegation of inadequate disclosure or nondisclosure in the show cause notice and the same is bad and beyond the scope of show cause notice. Further, the appellants are 100% exporter of output services. Thus, the entire balance of Cenvat credit represents unutilized input credit, which is refundable. Further, disclosure of refund claim filed, in the balance-sheet, is not the precedent condition for claiming of refund. The appellant have properly accounted for the service tax and education-cess paid on the input services used in or in relation to providing of investment advisory services, exported out of India. 4.7. Further, he urges that so far the issue of rebate claim is concerned, relating to the period April 12 to June 12, investment advisory services have been provided during the period April 12 to June, 12. The service tax liability is paid by utilisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of manner of receipt and payment in foreign exchange, wherein Clause 3 of the Notification provides that the manner for receipt of foreign exchange by payment in Rupees from the Account of a bank situated in any country other than member Countries of Asian Clearing Union or Nepal or Bhutan. Thus, I hold that all conditions for export of service, under Export of Service Rules, 2005 have been fulfilled and impugned order is bad for holding that there is no export of service. 6.3 I also hold that under the terms of agreement, the appellant as a service provider is entitled to receive both fees and reimbursement of expenses incurred, for rendering the service. As such, the two together form gross amount of service charges, as defined under Section 67 of the Finance Act, 1994. 6.4 I also hold that the appellant has filed sufficient documents in support of their claim of refund under the classification, 'Banking and Other Financial Services'. Such documents include, copy of Cenvat register, copy of investment advisory agreement, output invoices in respect of services exported, Foreign Inward Remittance Certificates and copy of ST-3 returns. I further hold that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants are related party in the business for the period July, 2007 to September, 2007 and similarly, there is no such allegation that ST-3 return do not disclose export of service recovered but export the services recovered by Export of Service Rules, which are more than actual expenses. Similarly, such allegation has not been made in the show cause for the period October, 2007 to December, 2007. 6.7 Further, I find that the show cause notice for the period April, 2012 to December, 2012 there is no allegations to show cause that services provided do not qualify as export, under Export of Service Rules. 6.8 I also hold that the adjudication orders for the period July' 11 to March' 12, being refund claim dated 29 th June, 2012 for ₹ 11,32,572/-, ₹ 13,43,033/- filed on 28 th March, 2013 for the period April' 12 to December' 12 and claim for ₹ 18,48,921/- dated 29 th June, 2012 for the period, April' 12 to June' 12 are bad, as no show cause notice was issued for these matters and as such, I hold that the adjudication orders are wholly without jurisdiction. According to the rules, service of a proper show cause notice is essential, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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