AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (10) TMI 1254
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....rt service, accordingly, the cash refund is inadmissible. Aggrieved by the said order, they filed appeals before the learned Commissioner (Appeals), who in turn, rejected their appeals, hence the present appeals. 3. Learned Advocate Ms. Kirti Bhoite for the appellant submits that during the period October, 2013 to September, 2015, the appellants have provided Scientific or Technical Consultancy Services to M/s Disphar International BV, Netherlands. Since the appellants were exporting the said services, they could not utilize the CENVAT Credit availed on the input services utilized in providing the out-put services, accordingly, they claimed cash refund of accumulated CENVAT Credit under Rule 5 of the CENVAT Credit Rules, 2004, by filing periodical claims. The department rejected all the 8 claims filed for the period from October, 2013 to September, 2015 on the ground that the services provided by the appellants is performance based services and fall under the scope of Rule 4 of the Place of provisions of Service Rules, 2012 and cannot be termed as 'export service' under Rule 6A of Service Tax Rules, 1994. 3.1 It is his contention that the appellants were providing scientific and ....
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....is also submitted that the learned Commissioner (Appeals) has wrongly denied credit on input services, namely, maintenance of Air Conditioners in the factory premises and Rent-a-Cab services which is required for the staff for travelling to different places in the course of discharging their duties. 4. Per contra, learned AR for the Revenue has submitted that the appellant had not substantiated the their claim that in the agreement with their overseas customers, though there was a stipulation for supply of materials or procurement of materials on which drug development or clinical trial is to be undertaken by them, but the same was not supplied them. Distinguishing the judgment of this Tribunal in Sai Life Sciences Ltd. case (supra), the learned AR for the Revenue submitted that this Tribunal decided the issue in favour of the assessee relying on earlier decision of the Hon'ble Bombay High Court in the case of Commissioner of Service Tax, Mumbai-II Vs. SGS India Ltd. - 2014 (34) STR 554 (Bom). The learned AR further submitted that in SGS India Ltd.'s case, there is no reference to Place of provisions of Service Rules, 2012 since the period involved in the said judgment relates....
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....down in this regard and the Board's clarification held that scientific or technical consultancy service provided in the development of drugs, to the overseas recipient of such service, is an 'export service'. This Tribunal observed as follows: - "13. In the context of a catena of judgments and decisions that exports are not taxable and, with the most palpable manifestation of export of invisibles being the receipt of convertible foreign exchange from a recipient of service located outside the country, that services are taxable at the destination, the scope of Rule 4 must necessarily be scrutinized to ascertain if there was, indeed, legislative intent to deny acknowledgement as exporter to a certain category of service providers that were so privileged tell them. There is no dispute that the recipient of service is located outside India and that the consideration is received in foreign convertible currency. Yet, Revenue insists that performance of service is in India. A service is not necessarily a single, discrete, identifiable activity; on the contrary, it is a series of invisibles that cater to the needs of a recipient; it is upon the consumption of the service by the recipient ....
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....-DEL-ST = 2006 (4) S.T.R. 81 (Del.)], took note of, and answered, one of the submissions thus - '4. The contention of the learned Counsel for the petitioner, based on the interpretation of Section 66A of the Act, is that any service that is obtained by a person who has a fixed place of business in India is liable to tax for services availed by him in a foreign country. By way of an example, learned Counsel for the petitioner has cited that if such a person in India goes abroad, and has a haircut, he would be liable to pay service tax in India on the basis of Section 66A of the Act. 5. We are not at all convinced by this argument of learned Counsel for the petitioner. The rules that have been framed by the Central Government make it absolutely clear that taxable service provided from outside India is liable to service-tax. In the example given by the learned Counsel for the petitioner, there is no question on the service of haircut having been received in India.' The intent in Rule 4 to remedy out some specific situations that would, otherwise, have enabled escapement from tax or leviability to tax where Rule 3 of Place of Provision of Services Rules, 2012 may not serve to conf....
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....th services or goods. 17. The goods supplied to the respondent, minor though the proportion may be, are subject to alteration in the course of research. It is not asserted anywhere that these goods, in its altered or unaltered form, are sent back to the service recipient; if it were, the provisions of Customs Act, 1962 would be invoked to eliminate tax burden. If the goods cease to exist in the form in which it has been supplied, it cannot be said that services have been provided in respect of goods even if it cannot be denied that services have been rendered on the goods. Consequently, the provisions of Rule 4(1) are not attracted and, in terms of Rule 6A of Service Tax Rules, 1994, the definition of export of services is applicable thus entitling the appellant to eligibility under Rule 5 of Cenvat Credit Rules, 2004." 10. The learned A.R for the revenue made a sincere attempt to distinguish the ratio laid down in SGS Pvt. Ltd.'s case. I do not find merit in the contention of the learned AR for the revenue that the ratio laid down by the Hon'ble Bombay High Court in M/s SGS India Ltd.'s case(supra) cannot be made applicable to the facts of the present case on the ground that in ....