TaxTMI 
TaxTMI 
2021 (3) TMI 1202
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.... the Commissioner of Central Tax (Appeals-I), Bangalore for refund of unutilized CENVAT credit of service tax availed on the input services used for providing output services said to have been exported during the period January 2013 to March 2013 in terms of provisions of Rule 5 of CENVAT Credit Rules, 2004. The claim was supported with the copy of Order-in-Appeal No.676/2018 dt. 27/06/2018 passed by the Commissioner of Central Tax (Appeals-I), Bangalore. It is pertinent to note that initially the claim was filed by the assessee for the period January 2013 to March 2013 for an amount of Rs. 39,77,799/- and the claim was further revised for Rs. 38,39,074/-. That vide Order-in-Original No.231/2017 dt. 16/01/2018, the original adjudicating authority had sanctioned Rs. 29,91,720/- out of Rs. 38,39,074/-. The amount of Rs. 8,47,354/- was rejected on the ground that the claimant has declared export turnover for the relevant period for Rs. 22,17,32,119/- which includes ITSS and BAS but under Rule 3 of the Provision of Service Rules, 2012, the sales, marketing and administrative services classified as BAS are provided in India and the same cannot be treated as export of service. Hence cons....
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....e remand Order-in-original and the impugned order has been passed in complete ignorance of the Order-in-Appeal dt. 27/06/2018, which is against the principle that orders passed by higher authorities are binding on lower authorities, as settled in the case of UOI Vs. Kamlakshi Finance Corporation Ltd. 1991(55) ELT 433 (SC)]. He further submitted that only on these grounds, the impugned order is liable to be set aside without going into merits of the case. But still, the learned counsel submitted that on merits also, the appellant has a good case. 4.2. On merits, the learned counsel submitted that the appellants are providing ITSS and BAS as services to group companies located outside India and these services provided to group companies located outside India are treated as export of service. The place of provision for these services is the place of recipient i.e. group companies located outside India. He further submitted that the services are provided on principal to principal basis and there is no element of principal-agent relationship. It is not a tripartite arrangement granting rights of claim by each of the three parties - service provider, beneficiary of service and the int....
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.... provided by the appellant to the foreign parent company would classify as export of service under the provision of Rule 6A of the Service Tax Rules, 1994 if all the six conditions under the said Rule are met and in the present case, the appellant satisfy all the six conditions and hence services rendered by the appellant are export of service. Appellant also relied upon the decision in the case of AMD India Pvt. Ltd. Vs. CST, Bangalore [2017(12) TMI 772 - CESTAT Bangalore] wherein it has been held that the ITSS, ITES provided by the assessee does not fall under intermediary services and thus fall within the definition of export of services. 5. On the other hand, the learned AR reiterated the findings of the impugned order. 6. After considering the submissions of both the parties and perusal of the material on record, I find that when the show-cause notice dt. 28/03/2014 was issued when the appellant filed the refund claim and the grounds raised in the show-cause notice was lack of nexus, claim is time barred and lack of documentation or discrepancies in documents; whereas when the Order-in-Original dt. 16/01/2018 was passed, the original authority travelled beyond the ....
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....ement as a whole which is also bad in law as held by the Supreme Court in the case of Super Poly Fabriks Ltd. cited supra. Further I find that the appellant has satisfied all the six conditions of Rule 6A which proves that these services rendered by them are export of service. Further I find that in the case of AMD India Pvt. Ltd. cited supra, the Tribunal in para 6.1 has held as under:- 6.1. After considering the submissions of both the parties and perusal of material on record and the judgments relied upon by the appellant, I find that the appellant is a subsidiary of its holding company and is providing services under the Master Services Agreement and the same Master Services Agreement does not provide that the appellant will facilitate or will arrange the purchase and sale on behalf of the AMD entities outside India. Further I also find that the services rendered by the appellant do not fall under the definition of intermediary and it satisfies all the conditions prescribed under rule 6A of the Service Tax Rules, 1994 because the services recipient is located outside India and the place of provision of service is outside India and the consideration has also been receiv....