TaxTMI 
TaxTMI 
2019 (1) TMI 1043
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....mpany, M/. Fertin Pharma, Denmark through e-mail. The goods, on which research and development activity was carried out by the appellant, were purchased from Parent Company for valid consideration after payment of appropriate Customs Duty. In other words, there is no temporary transfer by the Parent Company to the appellant but it is a transaction of sale and purchase, wherein ownership of goods is being transferred from Parent Company to them. The Appellant were carrying out research activity and exporting their service against convertible foreign exchange. In the said activity, whatever Cenvat credit was availed by them during the course of provision of service was getting accumulated on account exports. The appellant has filed a claim seeking refund of accumulated Cenvat credit under Rule 5 of Cenvat Credit Rules, 2004 for Rs. 4,31,384/-, but the same was rejected by both the authorities below on the ground that technical testing and analysis services provided by the Appellant cannot be termed as export of service. 3. The Learned Authorised Representative on behalf of revenue reiterated the findings recorded in the impugned order and prayed for dismissal of the appeal filed by ....
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.... carried out by them on the said goods in India and after analysis the relevant report was submitted to the overseas Denmark company. In the process of providing the said output service, that is, "Technical Testing and Analysis Service/Scientific and Technical Consultancy Service" various input services were used on which they availed CENVAT Credit. Since the services are exported, they claimed cash refund under Rule 5 of CENVAT Credit Rules, 2004,but Revenue rejected it alleging that the services since performed in India, therefore, do not fall under the scope of 'export of service'. I find that in their own case this Tribunal has already taken a view that the services rendered by the appellant are in the nature of export service and hence eligible to cash refund of accumulated CENVAT Credit. Also, in the case of Advinus Therapeutics Ltd. (supra), this Tribunal more or less under similar circumstances discussing all aspects of the issue held that scientific or technical consultancy service provided for the development of drugs to the overseas recipient of service was held to be 'export service'. This Tribunal observed as follows: - "13. In the context of a catena of judgments an....
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...., 2012, the performance of service being rendered outside India would render it to be an export. 14. In this context, the legislative intent of incorporating a special and specific provision in Rule 4 may yield further insights. The special provision, which may be seen as an exception to the general Rule 3, deals with services in respect of goods as well as those provided to individuals. Not unnaturally, the services that require the physical presence of the person is taxed where the consumer receives the service and not at his location which as per Rule 2(i)(iv) would be his usual place of residence. In what can be considered as a most telling example of the scope of this portion of Rule 4, we could do a lot worse than refer to a decision of the Hon'ble High Court of Delhi that, in the course of dealing with other, more weighty matters in Orient Crafts Ltd. v. Union of India [2006-TIOL-271-HC-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 bus....
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.... goods, Rule 4(1) of Place of Provision of Services Rules, 2012 would appear, by elimination of possibilities, to relate to goods that require some activity to be performed without altering its form. The exemplification in the Education Guide referred supra renders it pellucid. Certification is an important facet of trade and such certification, if undertaken in India, will not be able to escape tax by reference to location of the entity which entrusted the activity to the service provider in India. This is merely one situation but it should suffice for us to enunciate that Rule 4(1) is intended to resorted when services are rendered on goods without altering its form that in which it was made available to the service provider. This is the harmonious construct that can be placed on the applicability of Rule 4 in the context of tax on services and the general principle that taxes are not exported with 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, th....