TaxTMI 
TaxTMI 
TaxTMI 
2018 (10) TMI 1373
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....uty. Appellant undertook research activity on the said goods and exported the services viz. "Technical Testing and Analysis Service/Scientific and Technical Consultancy Service", against convertible foreign exchange. They had availed CENVAT Credit on various input services used in providing the output taxable services. Since the output services were exported, the appellant claimed cash refund of accumulated CENVAT Credit under Rule 5 of the CENVAT Credit Rules, 2004 for the period from January, 2014 to December, 2015 by filing quarterly refund claims from time to time. The adjudicating authority rejected their refund claims on the ground that the services provided by the appellant to their overseas customer cannot be considered as an 'export service' and secondly the input services on which credit was availed do not fall within the scope of 'input service' as prescribed under Rule 2(l) of the CENVAT Credit Rules, 2004. Aggrieved by the said order, they filed appeal before the learned Commissioner (Appeals), who on the first count held that the research and development services provided by the appellant cannot be treated as an 'export service'; and on the issue of applicability of t....
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.... Excise, Pune-I Vs. Sai Life Sciences Ltd. - 2016 (42) STR 882 (Tri- Mum)&Principal Commissioner of Central Excise, Pune-I Vs. Advinus Therapeutics Ltd. - 2017 (51) STR 296 (Tri-Mum) held that undertaking test in India and providing results to the overseas customers would fall within the scope of 'export service' and eligible to cash refund of accumulated CENVAT Credit under Rule 5 of the CENVAT Credit Rules, 2004. On the denial of credit on input services namely, Building Maintenance Service and Rent-a-cab service, the learned Advocate has submitted that there is nexus between the said services with the output service, hence, eligible to credit. 5. Learned AR for the Revenue reiterates the findings of the learned Commissioner (Appeals). 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....
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.... 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 that service is deemed to have become taxable. This has been so held by the Hon'ble Supreme Court in All India Federation of Tax Practitioners v. Union of India & others [2007 (7) S.T.R. 625 (S.C.)] below : '7. ....
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...., 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 confer jurisdiction becomes increasingly obvious. 15.Accordingly, we can infer that the location of performance of service in respect of goods is not an abstract, absolute expression for fastening tax liability on se....
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....d 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." 8. 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 the said case, the Place of Provision of Service Rules,2012 was not considered. This Tribunal while interpreting the provisions of new Rules, that is, Place of Provision of Service Rules, 2012 followed the ratio laid down in the said case in reiterating the basic principle of levy of service tax and observed that it is a consum....