TMI Blog2017 (12) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... e place of provision of service is outside India and the consideration has also been received in convertible foreign for exchange. The services rendered by the assessee is in the nature of export of service and does not fall in the definition of intermediary service. Appeal allowed - decided in favor of appellant. - ST/21298 to 21300/2016-SM - 22825-22827/2017 - Dated:- 20-11-2017 - Shri SS Garg, Judicial Member Shri Deepak Kumar Jain, Chartered Accountant - For the Appellant Shri Paravshivamurthy, Dy. Commissioner (AR) - For the Respondent ORDER Per: SS GARG These three appeals have been filed by the appellant against the common impugned order dt. 31/05/2016 passed by Commissioner(Appeals) whereby the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rting taxable services without payment of service tax and accordingly as per Rule 5 of CENVAT Credit Rules, 2004 (CCR), appellant filed a claim for refund of unutilized CENVAT credit amounting to ₹ 1,16,52,347/- for the period October 2013 to December 2013 after complying with all the conditions of the notification. Thereafter a show-cause notice was issued to the appellant proposing to reject the refund claim and after due process, the Assistant Commissioner disallowed the refund in full vide Order-in-Original dt. 09/12/2015. Aggrieved by the said order, appellant filed appeal before the Commissioner(Appeals) and the Commissioner(Appeals) allowed the refund to the extent relates to ITSS and denied the refund to the extent which relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the services rendered by the appellant company are not in any manner connected with facilitating or arranging sale of AMD products in India and accordingly by no stretch of imagination can they be regarded as intermediary. The learned consultant referred to Rule 6A of the Service Tax Rules, 1994 which prescribed the conditions; on fulfillment of which, a service provider is eligible for export of ITSS and BAS without payment of service tax. Service recipient must be located outside India; Place of provision of service is outside India; and Consideration for the services rendered must be received in convertible foreign exchange. 4.2. He further submitted that during the relevant period, the appellant has satisfied a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii ABS India Ltd. Vs. CCE, Bangalore [2009(13) STR 65 (Tri. Bang.)] iv. Lenovo India Pvt. Ltd. Vs. CCE, Bangalore [2010(20) STR 66 (Tri. Bang.)] v. National Engineering Industries Ltd. Vs. CCE, Jaipur [2008(11) STR 156 (Tri. Del.)] vi. KSH International Pvt. Ltd. Vs. CCE, Belapur [2010(18) STR 404 (Tri. Mumbai)] 5. On the other hand, the learned AR reiterated the findings of the impugned order. 6.1. After considering the submissions of both the parties and perusal of material on record and the judgments relied upon by the appellant, I find that the appellant is a subsidiary of its holding company and is providing services under the Master Services Agreement and the same Master Services Agreement does not provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vices Rules, 2005, clarified thus; the phrase used outside India is to be interpreted to mean that the benefit of the service should accrue outside India. Thus, it is possible that export of service may take place even when all the relevant activities take place in India so long as the benefits of these services accrue outside India. 6.2. Further the Commissioner(Appeals) in an identical issue for a different period vide its Order-in-Appeal No.205-208/2016 dt. 10/11/2016 has held that the services rendered by the assessee is in the nature of export of service and does not fall in the definition of intermediary service. Therefore by following the ratios of the above said decisions, I am of the considered view that the impugned order is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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