Fil Capital Advisors (India) Pvt. Ltd vs Commissioner Of Service Tax

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI

COURT No. II

Appln.No.ST/EH/98412 to 98415/14 ST/CO/91105/14 APPEAL No.ST/89080/13, ST/85340 to 85342/14

(Arising out of Order-in-Appeal No.192 to 195/BPS/MUM/2013 dated 22/05/2013 passed by Commissioner of Central Excise & Service Tax (Appeals), Mumbai-IV)

For approval and signature:

Honble Mr. P.R. Chandrasekharan, Member (Technical)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : Seen of the Order?

4. Whether Order is to be circulated to the Departmental: Yes authorities?

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Fil Capital Advisors (India) Pvt. Ltd., Appellant Vs. Commissioner of Service Tax, Mumbai Respondent

Appearance: Shri.Abhishek A Rastongi, CA for appellant Shri.B Kumar Iyer, Supdt. (AR) for respondent

CORAM: Honble Mr. P.R. Chandrasekharan, Member (Technical)

Date of Hearing : 18/03/2015 Date of Decision : 18/03/2015

ORDER NO

These appeals are filed by the department against Order-in-Appeal No.192 to 195/BPS/MUM/2013 dated 22/05/2013 passed by Commissioner of Central Excise & Service Tax (Appeals), Mumbai-IV. The early hearing application also relate to these appeals. The respondent has filed cross objections

2. Vide the impugned order, the learned lower appellate authority has set aside the orders of the adjudicating authority and allowed the refund of service tax amounting to Rs.54,84,603/- (which was denied by the adjudicating authority) on the ground that the transaction amounts to export and therefore, the appellant is rightly entitled for the refund of the service tax paid on the input service utilised in rendering of the output service. The only ground urged by the Revenue in their appeal memorandum is that the respondent herein are rendering advisory services and the said services have been utilised by a foreign entity who is related to the respondent for making investment in India and therefore, the service cannot be treated as export prior to 28/02/2010. However, there is no dispute that the service recipient is situated abroad and payment for the services rendered is received in convertible foreign exchange.

3. The learned Assistant Commissioner (AR) appearing for the revenue reiterates the ground urged in the appeal memorandum and prays for setting aside the impugned order.

4. The learned CA appearing for the respondent submits that the appellant is a different legal entity from the service recipient, who is situated abroad. It is the situs of the service recipient which determines where the service has been rendered. Further the appellant has received consideration for the services rendered in convertible foreign exchange. Therefore, these services have been exported outside India in terms of Rule 3 (3) (iii) of the Export of Service Rules,2005 and therefore, the respondent is rightly entitled for the refund of the service tax paid.

5. I have carefully considered the submissions made by both the sides.

5.1 In terms of Export of Service Rules, 2005 in respect of financial services, if the service recipient is situated outside India and the consideration has been received in convertible foreign exchange, it would satisfy the definition of export and therefore, in the absence of any dispute relating to the situs of the service recipient and the receipt of consideration in convertible foreign exchange, the contention of the respondent that the transaction is one of exports has to be upheld. Therefore, the lower appellate authority is right in holding that the appellant had, in fact, exported the services and therefore, eligible for the service tax credit paid on the input services. There is also no dispute about the refund being time barred. In the absence of any such reasons, there is no infirmity in the order passed by the lower appellate authority. Accordingly, I find no reason to interfere with the said order. Consequently, the revenues appeal gets rejected and the respondent will be entitled for the consequential relief, if any, in accordance with law. Since the appeals itself have been taken up for consideration, the early hearing applications have become infructuous and are accordingly dismissed. The cross objections are also disposed of.

(Dictated in Court)

(P.R. Chandrasekharan) Member (Technical)

pj

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