The Tax Publishers 2020 TaxPub(ST) 0153 (CESTAT-Mum)

CENVAT CREDIT RULES, 2004

Rule 5

Where assessee was situated in taxable territory, the recipient of service is located outside India, the service provided by assessee did not fall under the negative list, the place of provision of service as per rule 3 of the POPS Rules, 2012 is outside India, payment was received by assessee in convertible foreign exchange and assessee and service recipient were separate legal entities, thus, service provided by assessee was provided on its own account and therefore, did not qualify as intermediary service.

Refund of Cenvat credit - Place of provision of service - Rejection of refund on the ground that services provided by assessee were not to be considered as 'export of service' -

Assessee sought refund of the accumulated Cenvat credit for the period from October 2014 to September 2015 in terms of rule 5 read with Notification No. 27/2012-C.E. (N.T.), dated 18-6-2012. Adjudicating authority had rejected the refund claim primarily on the ground that the services provided by assessee was not to be considered as 'export of service' as the services were executed in India and since, assessee was an intermediary, the place of provision of service, as per rule 9 of the Place of Provision of Services Rules, 2012, ought to be considered as India. Held: CBEC vide Guidance Note, dated 20-6-2012, had few conditions which are to be satisfied for a service to be designated as export of service. Service provided by assessee satisfied all the mentioned conditions and hence, was an export of service. Assessee was situated in taxable territory, the recipient of service is located outside India, service provided by assessee did not fall under the negative list, place of provision of service as per rule 3 of the POPS Rules, 2012 is outside India, payment was received by assessee in convertible foreign exchange and assessee and service recipient were separate legal entities. Thus, the service provided by assessee was provided on its own account and therefore, does not qualify as intermediary service.

REFERRED : M/s. GoDaddy India Web Services (P) Ltd. v. Commissioner of Service Tax (2016-TIOL-08-ARA-ST) and Commissioner of Goods & Service Tax Gurgaon-II v. Orange Business Solutions (P) Ltd. 2019 (27) GSTL 523 (Tri.-Chan.).

FAVOUR : Against the assessee.

A.Y. :



IN THE CESTAT, MUMBAI BENCH

SUBSCRIBE TaxPublishers.inSUBSCRIBE FOR FULL CONTENT

TaxPublishers.in

'Kedarnath', 7, Avadh Vihar, Near Nirali Dhani,

Chopasni Road

Jodhpur - 342 008 (Rajasthan) INDIA

Phones : 9785602619 (11 am - 5 pm)

E-Mail : mail@taxpublishers.in / mail.taxpublishers@gmail.com