TMI Blog2018 (11) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund of the input service tax. The disputed services all have a direct bearing in the provision of the export services and lack of these services will definitely effect the provision of output services. Appellant is eligible for refund - appeal allowed - decided in favor of appellant. - ST/726/2010, ST/20953/2014 - FINAL ORDER No. A/31371-31372/2018 - Dated:- 1-11-2018 - Mr. M.V. Ravindran, Member (Judicial) And Mr. P. Venkata Subba Rao, Member (Technical) Shri Phani Kiran, Representative (CA) for the Appellant. Smt. B. Guna Ranjan, Superintendent/AR for the respondent. ORDER Per: P.V. Subba Rao. 1. These two appeals are on the same issue in respect of the same assessee. The assessee in question was M/s Zavata India Pvt Ltd during the period relevant to ST/726/2010. During the period relevant to ST/20953/2014, the appellant is M/s Apollo Health Street Ltd due to their amalgamation with M/s Apollo Health Street Ltd. The appellant herein provides support to M/s Zavata Inc, USA who provides health services to their clients such as patients, hospitals, insurance companies, etc. The appellant has been providing these services to the clients ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it does not get excluded by the exclusion clause in this section because the services rendered by them are not in the nature of computer data processing or system networking or any other service primarily in relation to operation of computer services. He submits that given the nature of their work computer systems are used but they are not providing any IT services, but were only providing support services using these computers. Therefore they do not fall under the category of ITSS but fall under category of BAS which was eligible to service tax during the relevant period and hence they were entitled to the refund of the input service tax. As far as the nexus is concerned, the appellant referred to Circular No. 120/1/2010-ST of CBEC dated 19.01.2010, in which it has been clarified by the Board that for the purpose of Notification No. 5/2006-CX (NT) the nexus needs to be interpreted in a harmonious manner and the test to see whether sufficient nexus exists is whether the absence of such input or input service adversely impacts the quality and efficiency of the output service. Para 3.1.2 of this circular dated 19.01.2010 is reproduced. 3.1.2. Therefore, the phrase, used in men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g agent Yes, allowed in Connexant, Xilinx and Harsco 6 Courier services Yes, allowed in Xilinx, Connexant and Harsco 7 Data card charges Yes, allowed in Xilinx case 8 Erection Commissioning installation services Yes, allowed in Connexant and Knoah 9 Event Management 10 Form Tax audit fees Yes, allowed in Xilinx case, Connexant and Knoah 11 Lease Plan Should be allowed as the same is used for finding premises 12 Mobile charges Yes, allowed in Xilinx case 5. Learned departmental representative reiterates the arguments made in the Order-in-Original and asserted that since the appellant s main job is related to provision of computer support services to M/s Zavata Inc, USA the services which were exported deserved to be classified as ITSS which were chargeable to service tax only from 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is maintaining their computer systems or managing their software. CBEC s clarification in this Circular leaves no doubt that the appellant s services do not get covered under ITSS but fall under BAS which were taxable during the relevant period. Since, they have exported these services they are entitled to the benefit of the refund of the input service tax. In a similar case i.e., in the case of Dell International Services India Pvt Ltd [2010 (17) STR 540 (Tri-Bang)] (in which one of us, (Shri M.V. Ravindran) was a member) it was held as follows: 6. The primary objection of the Revenue is that the appellants are not exporting taxable services and that the input services are not used for providing exported service. The issue stands settled in the appellants own case in respect of the claims filed for the months of March, 2005 to February, 2006, wherein the Assistant Commissioner has given the finding after detailed scrutiny of all the documents filed along with rebate claim that the input services in dispute have been used in taxable service exported. The department has not filed any appeal against the above part of the said order which means that the same view taken by the AC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a taxable service and will qualify for availing benefit under Export of Services Rules, 2005. Reliance was placed on the decision of this Bench in the case of M/s. ANZ International v. CCE, Bangalore - 2008 (224) E.L.T. 573 (Tri.-Bang.) affirmed by the High Court in Commissioner of Customs, Bangalore v. ANZ International - 2009 (233) E.L.T. 40 (Kar.). 8. Our attention was also invited to the definition of input service under Rule 2(l) of the Cenvat Credit Rules, 2004. The definition of input service is of a very wide interpretation for the following reasons : It uses the phrase whether directly or indirectly, in or in relation to , for providing It gives an inclusive definition which further widens the scope of the main definition; and It uses the phrase activities relating to business as an input service. 8. An appeal has been admitted by the Supreme Court against this order but it has not been stayed or set aside [2017 (4) GSTL J.77 (SC)]. Hence the ratio applies. Similarly, in the case of IBM Daksh Business Process Services Pvt Ltd [2015 (37) STR 833 (Tri-Delhi)] it has been categorically held that the service provided on behalf of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
