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TMI Blog2019 (2) TMI 1251X X X X Extracts X X X X X X X X Extracts X X X X ..... or themselves as well as to their subsidiaries. 2. The facts of the case are that during the period 2010-2011 and 2014-2015, various show cause notices were issued to the appellant to deny the cenvat credit on 'Errors & Omissions Liability Insurance Policy'. The Appellant is a Global IT Service Company and is engaged in providing taxable service, namely, Information Technology Software Service (ITSS) to its subscribers located in India as well as abroad. The services provided to the foreign clients is although in the nature of offshore service, however, the same also requires the physical presence of the Appellant's engineers at different locations, hence, in view of the same, the Appellant has set up subsidiaries in India as well as abroa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been provided by the Appellant to the subsidiary companies as the entire transaction did not involve realization of any additional consideration for the activity of procurement of insurance policy and on the ground that the service of insurance policy is not an 'input service' for the Appellant but the same is an input service for its subsidiary companies and hence, the credit for the same cannot be availed by the Appellant. Against the said orders, the appellant is before us. 3. The Ld. Counsel for the appellant submits that the procuring insurance policy on behalf of its subsidiary companies in India, the appellant is discharging service tax on the same. He further submitted that the Appellant has provided the service of procurement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable on the premium attributable to the subsidiaries as the same was not taxable and hence the availment of Cenvat credit is nothing but a refund. It is his submission that if the service of insurance was provided by the insurance company to the foreign subsidiaries, in that case, the said service is provided was entirely outside the taxable territory of India and the same is not taxable. As the appellant has discharged service tax on the said insurance policy and hence the Cenvat credit of such service tax is nothing but a refund of the service tax erroneously discharged by the appellant. In the event, if the said Cenvat credit is denied to the Appellant, the Department would be unjustly enriched. To support their contention of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital loss to the Appellant, maybe at the cost of affecting operations. The fact that the said subsidiaries are different legal entities is totally irrelevant as there is no bar on a separate person to provide services on behalf of another. He further submitted that the interest is not payable by the appellant as during the impugned period there was a sufficient balance in their cenvat credit account remained unutilized. He further submitted that the show cause notices dated 21.04.2015 and 23.03.2016, the show cause notice prior to period was already issued, hence, the element of suppression cannot be invoked, therefore, in the light of the decision of the Hon'ble Supreme Court in the case of Nizam Sugar Factory vs. Collector of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant is not wholly utilized by the appellant but the same includes proportionate amount paid by the appellant on behalf of the subsidiaries. It is also a fact on record that the amount attributable to the local subsidiaries, the appellant has paid service tax which shows that the appellant was having considered view that the proportionate amount attributable to the subsidiaries, the appellant is not entitled to take cenvat credit, therefore, the appellant charged amount of service tax from the subsidiaries located within India. 10. Further, the contention of the Ld. Counsel for the appellant is that the appellant is providing Business Support Service to their subsidiary companies is not acceptable as the insurance policy has been ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... surance policy in terms of Rule 3 of the Cenvat Credit Rules, 2004. 12. The last contention raised by the Ld. Counsel that there foreign entities and the appellant are same, therefore, they are entitled to take cenvat credit. If the said contention is taken to be correct, in that circumstances, why the appellant has recovered proportionate amount of consideration form their subsidiaries. If the appellant is recovering any amount attributable to their subsidiaries, therefore, the appellant itself is considering their subsidiaries are all together different from the appellant. In that circumstances, also the appellant is not entitled to take cenvat credit for the services availed by third party. In that circumstances, we hold that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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