2018 (3) TMI 770

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....tive clients in relation to companies in India. For providing the services, the appellant was receiving service fee in convertable foreign exchange. The appellant filed refund claims for different periods from April 2008 to September 2010, seeking refund of cenvat credit lying un-utilized in their account, on the ground that they have used input services in providing the output service namely, MBCS, which were exported outside the country to their overseas clients. The refund claims were filed under Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No. 5/2006 C.E. (N.T.) dated 14.03.2006. The Department initiated show cause proceedings against the appellants ,proposing to reject the refund claim of Rs. 58,24,477/-in total, on the ground that the appellant is engaged in rendering the service under the category of "Real Estate Advisory Service" (REAS). It has been alleged that the appellants rendered the service in respect of the properties situated in India and therefore, the services cannot be treated as export of service. The adjudicating authority had rejected the refund claim under Rule 5 of the Cenvat Rules, holding that the services provided by the appellants are ....

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....cepted by the appellants, pursuant to the terms and conditions of the agreement. Paragraph 2 of the said agreement provides heading "duties and services". Clause (c) in paragraph 2 is relevant for consideration of the present dispute, which is reproduced below: 2.(c) - "Pursuant to this agreement, and subject in each case to the limitations set forth herein, the Advisor and its employees shall, to the extent requested by, and at the direction of, the Manager: (i) Perform research and analysis with respect to investment identified by the Manager and advise with respect to investment opportunities related to companies incorporated, headquarter or doing business in India ("India Company"); (ii) Evaluate make available and recommend to the Manager investment opportunities and make recommendations regarding the disposition of investments, in each case with respect to India Companies; (iii) Assist Manager with preparing memoranda that may summarize and/or recommend investment opportunities in India Companies; (iv) Advise Manager with respect to the structure of investment and dispositions of India Companies and provide non-binding advice on the negotiation of the terms and docu....

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....stor does not acquire or purchase the real estate property itself. In this context, we find that the Tribunal in the case of AMP capital Advisors Indian Pvt. Ltd. Vs. CST, Mumbai -2015-TIOL-1001-CESTAT-MUM, observed that the appellant providing advisory services to AMP capital, Australia and the service recipient using said advice received for further advising for their customers in India, would qualify for export of service. The relevant paragraphs of such decision are reproduced below:- "6. I have carefully considered the submissions made by both the sides. The issue to be decided by me in this case is whether the services provided by the appellant, M/s. AMP India Capital Advisors (India) Pvt. Ltd. to M/s. AMP Capital (Australia) is „export of service‟ or otherwise and consequently eligibility to refund. As per the facts, the appellant is providing management consultancy services such as providing reports of information on investment area, industries, companies, non-binding advisory service in respect of potential investment and investment opportunities in India, the research analysis and identification of investment opportunities providing necessary reports, inform....

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.... used in India only. The learned Commissioner has simply stated that on going through the agreement this is what he finds. He has not quoted paragraph of the agreement which is relevant and where exactly it emerges from the agreement that services are lo be used in India. Moreover, as per Circular, issued by the Board in 2009 and considered in the Interim Order (supra), if the beneficiary is located outside, refund is admissible. It is not the case of the Revenue that consideration has not been received in foreign currency. We also find that this Tribunal in the case of CST, Mumbai v. M/s. Greater Pacific Capital Pvt. Ltd. [2014-TIOL-1726-CESTAT-Mum] in similar circumstances came to the conclusion that refund is admissible. Accordingly, we consider that the appellant has made out a case for eligibility for refund. Therefore appeal is allowed with consequential relief to the appellant." (ii) Commissioner of Service Tax, Mumbai v. Greater Pacific Capital Pvt. Ltd. "9. In this case the issue is to be decided whether the services provided by the respondent to GPC located outside India qualifies as export of service as per Rule 3(1)(iii) read with Rule 4 of the Export of Services Ru....