TMI Blog2018 (10) TMI 1373X X X X Extracts X X X X X X X X Extracts X X X X ..... said case in reiterating the basic principle of levy of service tax and observed that it is a consumption-based levy, accordingly, the technical and consultancy service, commences from the stage of undertaking the test on the goods procured and the service is completed on delivery of the test report/certificate to the overseas client - The appellants are eligible to cash refund of the accumulated CENVAT Credit under Rule 5 of the CENVAT Credit Rules, 2004. The matters are remanded to the adjudicating authority to calculate the admissibility of refund amount except the credit availed on input services viz. Building maintenance charges and rent-a-cab service - Appeal allowed by way of remand. - Appeal No. ST/86041 to 86045 & 86319/2018 - A/87552-87557/2018 - Dated:- 28-9-2018 - DR. D.M. MISRA, MEMBER (JUDICIAL) Shri D.H. Nadkarni, Advocate for Appellant Shri M.P. Damle, AC (AR) for Respondent ORDER Per: Dr. D.M. Misra These appeals are filed against Order-in-Appeal No. MKK/327-332/RGD/APP/2017 dated 14.12.2017 passed by the Commissioner of Central Excise Service Tax (Appeals), Raigad. 2. Briefly stated facts of the case are that the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2012, from Rule 4 onwards the respective rules are divided subject-wise i.e. performance based service, immovable property, events etc., and as such the service provided by the appellant would not fall in any of these categories. It is his contention that the services rendered by the appellant squarely covered under the scope of Rule 3 of the Place of Provision of Services Rules, 2012 and as the recipient of service is located in Denmark, the said service is an export service since it satisfies the condition (d) of Rule 6A of the Service Tax Rules, 1994, . 4. He has further submitted that the goods on which research was conducted by the appellants were imported from Denmark on payment of appropriate customs duty on the transaction price of the said goods paid to the supplier and there is no temporary transfer of the said goods, but it is a transaction of sale and purchase of the goods. As per CBEC Guidance on service tax vide TRU Circular dated 20.6.2012, note 5 of clarifies that it is essential that to cover under Rule 4, the goods should temporarily come under the physical possession or control of the service provider and without such effect, the service cannot be termed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chme Ltd. Vs. CCE, Raigad 2017-TIOL-3448- CESTAT-MUM and submitted that The present facts are identical mirror image of the facts of the aforesaid judgments and hence, the services are since performed in India, therefore, Rule 6A of Service Tax rules, 1994 is not satisfied, consequently, the appellant are not eligible to cash refund of the accumulated cenvat credit. 6. Heard both sides and perused the records. Undisputedly, the appellant had purchased the goods from the overseas company, on which they discharged appropriate customs duty on its import into India. Necessary tests are carried out by them on the said goods in India and after analysis the relevant report was submitted to the overseas Denmark company. In the process of providing the said output service, that is, Technical Testing and Analysis Service/Scientific and Technical Consultancy Service various input services were used on which they availed CENVAT Credit. Since the services are exported, they claimed cash refund under Rule 5 of CENVAT Credit Rules, 2004, but Revenue rejected it alleging that the services since performed in India, therefore, do not fall under the scope of export of service . I find that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this activity could, but for commercial viability, will be executed by the recipient within its own organization or the territory in which it exists. The satisfaction of the customer occurs upon an outcome which is possessed by the recipient. Hence, even if some of the activities are carried out in India, by no stretch can it be asserted that the fulfilment of the activity is in India. Therefore, the inescapable conclusion is that the location of the actual performance of the service is outside India and, even with the special and specific provision of Rule 4 of Place of Provision of Services Rules, 2012, the performance of service being rendered outside India would render it to be an export. 14. In this context, the legislative intent of incorporating a special and specific provision in Rule 4 may yield further insights. The special provision, which may be seen as an exception to the general Rule 3, deals with services in respect of goods as well as those provided to individuals. Not unnaturally, the services that require the physical presence of the person is taxed where the consumer receives the service and not at his location which as per Rule 2(i)(iv) would be his usual p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ludes goods imported temporarily for repairs but that does not, ipso facto, exempt goods imported temporarily for repairs from taxability which would, by default, be predicated by the intent in Rule 3. Consequently, a recipient in India would be liable to tax on such temporary imports for repairs while service to a recipient located abroad would not be taxable. This is in consonance with the privilege of exemption afforded to export of services. The special and distinct role of Rule 4 becomes clearer. 16. Not intended to tax the activity of altering goods supplied by the recipient of service or for repairs on goods, Rule 4(1) of Place of Provision of Services Rules, 2012 would appear, by elimination of possibilities, to relate to goods that require some activity to be performed without altering its form. The exemplification in the Education Guide referred supra renders it pellucid. Certification is an important facet of trade and such certification, if undertaken in India, will not be able to escape tax by reference to location of the entity which entrusted the activity to the service provider in India. This is merely one situation but it should suffice for us to enunciate tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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