Custom, Excise & Service Tax Tribunal
Amd India Pvt Ltd (Formerly Amd Far East ... vs Bangalore Service Tax- I on 3 May, 2024
Service Tax Appeal Nos.1617, 2440/2010
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
Regional Bench COURT-2
Service Tax Appeal No. 1617 of 2010
[Arising out of the Order-in-Appeal No.187/2010 dated 22.04.2010
passed by the Commissioner of Central Excise Customs, Cochin]
M/s AMD FAR EAST LTD.
(INDIA BRANCH OFFICE)
(Now know as M/s AMD India Pvt., Ltd.)
Poddar Heritage Building,
No. 28, Cubbon Road/Infantry Road,
Shivaji Nagar,
Bangalore - 560 001 ....Appellant
VERSUS
COMMISSIONER OF CENTRAL EXCISE,
No.16/1, Lalbagh Road,
Bangalore -560 027. ....Respondent
WITH Service Tax Appeal No. 2440 of 2010 [Arising out of the Order-in-Appeal No.329/2010 dated 22.04.2010 passed by the Commissioner of Central Excise Customs, Cochin] M/s AMD FAR EAST LTD.
(INDIA BRANCH OFFICE) (Now know as M/s AMD India Pvt., Ltd.) Poddar Heritage Building, No. 28, Cubbon Road/Infantry Road, Shivaji Nagar, Bangalore - 560 001 ....Appellant VERSUS COMMISSIONER OF CENTRAL EXCISE, No.16/1, Lalbagh Road, Bangalore -560 027. ....Respondent Appearance:
Mr. Deepak Kumar Jain, Advocate for the Appellant Mr. Rajesh Shastry, AR for the Respondent CORAM:
Hon'ble Mr. P.A. Augustian, Member (Judicial) Hon'ble Mr. Pullela Nageswara Rao, Member (Technical) Page 1 of 7 Service Tax Appeal Nos.1617, 2440/2010 FINAL ORDER No.__20418-20419__ of 2024 Date of Hearing: 14.12.2023 Date of Decision: 03.05.2024 Per: P.A. Augustian M/s AMD Far East Ltd., a 100% EOU, appellant is registered under the category of 'Business Auxiliary service'. The appellant had filed refund claims for Rs.74,13,599/- for the period from October, 2007 to March, 2008 and for Rs. 50,04,250/- for the period April,2008 to July, 2008. Seeking refund of unutilised CENVAT Credit of service tax paid by them on the input services under Notification No.5/2006-CE(NT) dated 14.03.2006.
2. The brief facts of the case are the appellant had filed the refund claims on the ground that the input services availed by them were used for 'export of services' under Export of Service Rules, 2005. A Show Cause Notices were issued to the appellant alleging inter-alia that; in certain input services there is no nexus between input services and service exported; they have not submitted certain documents required for processing the refund claim. Thereafter, adjudicating authority considered the submission made by the appellant and rejected the entire claims on the ground that the activity of the claimant's does not constitute export of service under the category of "such service is provided from India and used outside India" as per the Rule 3(2)(a) of the Export of Service Rules 2005, Adjudicating authority also made certain other findings in the impugned order to reject the refund claim submitted by the appellant. Aggrieved by said order, on Appeal, Commissioner (Appeals) vide the Page 2 of 7 Service Tax Appeal Nos.1617, 2440/2010 impugned orders dated 22.04.2010 and 24.08.2010 rejected the appeals. In his findings the Commissioner (Appeal) is held that; The issue pertains to refund claim of unutilised Cenvat credit of service said to have been paid by the appellant, on input services availed by them for services exported. The issue involved is whether the services rendered by the appellant to their foreign client can be treated as export of service or not. It is seen that appellant has entered into an agreement with M/s. AMD, USA for marketing and promotion of products of AMD, USA in India. Hence, the services provided by appellant from India are ultimately used in India only, in as much as supplying the goods/service to the end customer located in India. Aggrieved by said orders, present appeals were filed. Since both the appeals are similar, they are taken up together for disposal through this order.
3. When the matter was taken up for hearing, the, Appellant submits that; the refund claim was rejected on the ground that the services provided by the appellant fall under 'Business Support Service' and not Business Auxiliary Service, since the recipient of services is not situated outside India. Hence, could not be considered as exports for claim of refund unutilised input Tax Credit; the classification of service rendered was never a point of dispute in the Show Cause Notice issued by the Original Adjudicating Authority; the service rendered could fall in Clause
(vi) under section 65 (19) read with Sec 65 (105)(zzb) of the Finance Act, 1994 ; the refund for the earlier period April 2007 to September 2007 was granted by the then adjudicating Page 3 of 7 Service Tax Appeal Nos.1617, 2440/2010 authority for the same services exported (Order-in-original No.57/2008 dated 0-june-2008).
4. The Appellant has relied on their decisions in their own cases, where their activity was considered as exports classifiable under 'Business Auxiliary Services' as under:-
i. AMD India Private Limited Vs. Commissioner of Service Tax, Bengaluru [2017(12) TMI 772 - CESTAT Bangalore [Final Order Nos. 22825 to 22827/2017 dated 20th Nov 2017] ii. AMD India Private Limited vs Commissioner of Service Tax, Bengaluru [Tribunal Appeal No. ST/02440/2010]- Interim Order No. 79 to 152/2014 iii. Order-in-Appeal No. 241/2022 dated 30 June, 2022 passed by Commissioner of Central Tax (Appeals-I), Bengaluru iv. Order-in-Original No. 04/2022-23 dated 19 April, 2023 passed by the Assistant Commissioner of Central Tax, Division-7, East Commissionerate, Bengaluru
5. Further the appellant has relied on the following decisions:-
i. M/s Blue Star Ltd. Vs. CCE, Bangalore, vide Final Order No.489/2008 dated 27.03.2008-2008 (11) S.T.R 23 (Tri-Bang.) ii. M/s ABS India Ltd. Vs. Commissioner of Service Tax vide Final Order No. 942/08/2008-2009 (13) S.T.R. 65 (Tri-Bang.) Page 4 of 7 Service Tax Appeal Nos.1617, 2440/2010 iii. Sun Micro Systems (I) Pvt. Ltd. Vs. CCE, Bangalore-2010 (19) 5.T.R. 26 (Tri. - Bang.).
iv. KSH International Private Limited Vs. CCE, Belapur vide Final Order No. A/82/2010-WZB/C-IV/SMB datedt.14.01.2010-2010(18) S.T.R. 404 (Tri. - Mumbai) v. M/s IBM India Private Limited Vs. CCE, Bangalore
-2010 (19) S.T.R. 520 (Tri. - Bang.) vi. Airbus Group India Pvt., Ltd., Vs. CST, Delhi 2016 (45) S.T.R. 120 (Tri. - Del.) vii. Lenovo India Private Limited Vs. CCE, Bangalore-
Final Order No. 95/2009 dated 10.02 .2009. viii. IOC Limited Vs Commissioner of Central Excise, (2004 (178) ELT 834), wherein the it was held that procedural lapses are condonable in the interest of export promotion and refund claim be allowed.
6. Learned Authorised Representative fairly admits that the issue is no more res integra, since this Tribunal has taken a view allowing the appeals.
7. Heard both sides and perused the records.
8. We find that the revenue has held that the services provided by the appellant fall under the category of 'Business Support Service' and not 'Business Auxiliary Service'. We find that the issue pertaining to the previous period was considered by this Tribunal in appellant's own case, AMD India Pvt., Ltd., Vs. CST, Bangalore and allowed the appeal with the following findings:-
Page 5 of 7
Service Tax Appeal Nos.1617, 2440/2010 "6.5 Issue No.5. The activity of provision of service is in India and therefore the claim for refund on the ground that service has been exported cannot be accepted.
In some services especially business auxiliary service, some of the assessees in India rendered services to the principals abroad by undertaking sales promotion and marketing of their goods. The question arises whether it may be said that there is an export of service in such cases. No doubt remittance for consideration for the services rendered is received in foreign currency from the principal abroad. However, the stand has been taken by the Revenue that in such cases, the entire activity of sales, marketing promotions and after sales service/maintenance etc., takes place in India only and therefore it cannot be said that there is an export of service. It is also viewed that even the benefits of such 24.02.2009. In this circular in paragraph-3 Board has accepted that for category (iii) services (As per Export of Services Rules), it is possible that export of service may take place even when all the relevant activities take place in India so long as benefits of these services accrue outside India. This is because service tax is a destination-based tax. It is felt that many claims have been disallowed because benefit of this Circular was not available and we are quite sure that when the issue is reconsidered, wherever this circular is applicable, the same would be applied and therefore wherever refund claims involve this service and claim has been disallowed on this ground, they have to be remanded with a direction to follow the remand instructions and apply the instructions to the facts of the case".
9. Learned Counsel further submits that the similar issue pertaining to the appellant's own case for the period from April, 2013 to September, 2013 and January, 2014 to March, 2016, were considered by the Commissioner (Appeals) vide Order-in- Appeal No.241/2022 dated 30.06.2022 and following the Final Page 6 of 7 Service Tax Appeal Nos.1617, 2440/2010 Order Nos. 22825-22827/2017 dated 20.11.2017 of this Tribunal, the Appeal was allowed.
10. The Learned Counsel also drew our attention to the Order- in-Original No.04/2022-231/ED7 dated 19.04.2023, where Adjudicating authority sanctioned an amount of Rs.1,09,75,882/- by following the decision of the Tribunal.
11. We find that Learned Authorised Representative fairly admits that the issue is no more res integra, since this Tribunal has taken a view allowing the appeals. Further we find Board vide Circular No.111/05/2009-ST dated 24.02.2009 has also issued clarification in this regard.
12. In view of the above discussion and in the facts and circumstances of the case, we find that there is on reason to interfere with the ratio of the decisions of the Tribunal, therefore the appeals are sustainable.
13. In the result the appeals are allowed with consequential relief, if any as per law.
(Order pronounced in Open Court on 03.05.2024) (P.A. Augustian) Member (Judicial) (Pullela Nageswara Rao) Member (Technical) Ganesh....
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