TMI Blog2019 (7) TMI 1418X X X X Extracts X X X X X X X X Extracts X X X X ..... e India. However, the learned authorized representative submits that this certificate was not produced before the Commissioner (Appeals) - Therefore, it would be in the interest of justice that the matter should go back to the learned Commissioner (Appeals) to appreciate the evidence submitted by the appellants in this regard. Whether some of the input services which are disputed have nexus with the output service provided by the appellants? - HELD THAT:- The appellants have given elaborate submissions on the applicability of such services as settled by various decisions - the entire issue of nexus between the input service and output service has been clarified by CBEC Circular 120/01/2010 ST and the case-law cited by the appellants. In view of the above, the issue of examining nexus in respect of each of the input service requires to be seen in the light of ratios of judgments by Tribunal and higher Courts and the circulars issued by the Board - For this purpose also the matter requires to be remanded to the lower authorities. Whether refund will be barred on technical reasons such as incomplete forms, inadequate data, difference in figures etc. - HELD THAT:- As long as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices have been enjoyed outside India, learned counsel for the appellant submits that the service tax or Cenvat provisions prescribe no condition that the appellant should produce a certificate obtained from the recipient. The conditions prescribed under Export of Service Rules, 2005, for the services to qualify the export are:- (a) the service should be provided from India and used outside India and (b) payment for such service is received in convertible foreign exchange. He submits that the appellant is located in India, the recipient is located outside India and therefore, the services are to be treated as provided from India. He submits that in Paul Merchants Ltd. Vs. CCE 2012 TIOL-1877-CESTAT-Del. and Microsoft Corporation India Pvt. Ltd. Vs. CST, New Delhi 2014-TIOL-1964-CESTAT-DEL., CESTAT held that as long as the service recipient is located outside India and the benefit of services accrue outside India, the services provided by an Indian company would qualify as export. He further submits that CBEC circular No. 111/05/2009 -ST dated 24.02.2009 clarifies that For the services that fall under Category III [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iness outside India. The appellant further states that they submitted certified correlation statements between FIRC and export invoices which are certified by the banks before the Commissioner (Appeals). Regarding other minor allegation in this set of appeals the learned counsel submits that in terms of Rule 4(7) of the Cenvat Credit Rules, 2004 they have availed credit during the months of January 2009 to March 2009 for a period prior to January 2009, as the payments were made in the respective months. Regarding the allegation that original documents such as input invoices, FIRC s and Bank statements evidencing payment were not submitted, he states that there is no such condition as per Notification 5/2006. However, if the authority so desires, they could verify the veracity with original documents. Regarding the allegation that some export invoices are not in a proper format, he submits that the invoices raised by them contains all the details required under Rule 4A of Service Tax Rules, 1994. The only lapse was non-mentioning of the registration no. which is a minor procedural lapse and for which a substantial benefit cannot be denied. Regarding the allegation about difference i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elatine Products Ltd. Vs. CCE, Bhopal 2012 (25) STR 109 (Tri.-Del.) Outdoor Catering 1,24,418 Heartland Bangalore Transcription services P. Ltd. Vs. CST, Bangalore 2011 (21) STR 430(Tri.-Bang.) Business Auxiliary Service 31,456 CCE ST, Bangalore II Vs. Nash Industries 2016 (45) STR 233 (Tri.-Bang.) Cargo Handling 22,745 Jeans Knit P. Ltd. Vs. CCE, Bangalore 2011(21) STR 460 (Tri.-Bang.) Company Secretary Services 15,304 CCE ST, Bangalore II Vs. Nash Industries 2016 (45) STR 233 (Tri.-Bang.) Advertising Agency Services 14,907 CST, Vs. Convergys (I) P. Ltd. 2009(92) RLT 1017 (Tri.) Erection, Commissioning or Installation Service 8,369 DSCL Sugar Vs. CCE, Lucknow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct it is apparent that the work undertaken by the appellants is design, develop and test the deliverables which would be the sole patent of Samsung in Korea. Understandably such development of software when completed will be used by Samsung, Korea. Therefore, there should not be any doubt as to the nature of services rendered by the appellants. Moreover, the appellants are a unit in the STPI and are filing the returns with the STPI from time to time. The STPI authorities are validating the exports from time to time. Therefore, we find that the appellants are exporting services in relation to Information Technology Software. The recipient is undisputedly Samsung Korea which is outside India. The appellants are receiving the renumeration for the services rendered in foreign exchange. Therefore, we find that the activity undertaken by appellants amounts to export of services. It is seen that learned Commissioner (Appeals) has found that no documentary evidence such as utilization certificate was not provided by the overseas customers. The appellant submits that there is correlation between the FIRC s and export invoices. These records cannot be brush aside. Moreover, we find that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vel expenditure incurred by the personnel of the input service provider which is reimbursed by the appellants. The Department did not contest the service tax paid on the same including the reimbursed expenditure. Therefore, that portion of the service tax should be eligible for considering the refund. Similarly, the appellants have given elaborate submissions about the other disputed input services. Wherever the issues are settled the appellants have provided the case-law. During the course of the arguments, the learned counsel for the appellants conceded that among the disputed input services they wish to concede the input service of Event Management Services as they see that it has no nexus with the export of services. 7.5. The entire issue of nexus between the input service and output service has been clarified by CBEC Circular 120/01/2010 ST and the case-law cited by the appellants. In view of the above, we find that the issue of examining nexus in respect of each of the input service requires to be seen in the light of ratios of judgments by Tribunal and higher Courts and the circulars issued by the Board. For this purpose also the matter requires to be remand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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