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TMI Blog2024 (6) TMI 1183X X X X Extracts X X X X X X X X Extracts X X X X ..... e at para 1 of the impugned order. The said refund claim was the input service credit under Rule 5 of CENVAT Credit Rules, 2004 and it appears that after due process, the original authority sanctioned those amounts reflected at Col. 5 of the said Table. Aggrieved by the said sanctioning of the refund, it appears that the department filed appeals before the first appellate authority mainly on the ground that the services provided by the appellant herein to the foreign entity were covered under Business Auxiliary Service (BAS for short), that the income earned for providing services in relation to the sale of goods / service provided by the respondent therein was to facilitate sale in India of the goods of the principal and claiming such serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the service receiver was situated outside India, which automatically declassifies the service rendered by the respondent from the category of 'export of service'. He thus concurred with the contentions in the appeal filed by the department that the service of commission Agent, though commission was paid by the principal located outside India, but was actually used for the promotion of sale of goods to the consumers within India, who enjoyed the fruit of the product. 6. It is clear from the facts of this case that the appellant, as the service provider, was obliged to render service as per the 'Buying Agency Agreement' between the foreign entity-service recipient and the appellant, for which the consideration is received in India in foreig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Indian entity but rather to identify 'suppliers' within India; 'supplier' has been defined in the same agreement to be 'companies entrusted by the Agent for the manufacture of Merchandise'. It is hence clear that the lower authorities have seriously erred in misunderstanding the facts and thereby deny the CENVAT credit availed by the appellant as inadmissible. 8. This Bench had an occasion to consider an almost similar issue recently, in the case of Manali Petrochemicals Limited Vs. CGST & CE, Chennai (Final Order No. 40682/2024 dated 19.6.2024). After considering the judicial precedents on the issue, the Bench concurred with the taxpayer's contentions and held that the finding of the lower authority therein was bad and unsustainable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in US dollars." 9. It is clear from the above that the role of the appellant is to render service to the Japan based service receiver, in delivering the product manufactured outside India, to the ultimate consumer in India namely Whirlpool Ltd. 10. Ld. Advocate would refer to and rely upon an order of Delhi Bench of the Tribunal in the case of Involute Engineering Private Limited Vs. Commissioner of Central Excise & Service Tax reported in 2020 (12) TMI 533 - CESTAT New Delhi, wherein the coordinate Delhi Bench has considered a more or less similar issue, has also referred to various decisions/orders of higher judicial fora and has concluded at paragraph 34 as under: "As noticed above the only requirement after the amendment to Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty having his business and residence in India, it would have to be presumed that service has been used outside India. Similarly, if an Indian event manager (a Category II service [Rule 3(1)(ii)]) arranges a seminar for an Indian company in U.K. the service has to be treated to have been used outside India because the place of performance is U.K. even though the benefit of such a seminar may flow back to the employees serving the company in India. For the services that fall under Category III [Rule 3(1)(iiill, the relevant factor is the location of the service receiver and not the place of performance. In this context, the phrase 'used outside India' is to be interpreted to mean that the benefit of the service should accrue outs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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