Holtec Asia P. Ltd. Versus Commissioner of Central Excise, GST Pune
Service Tax
2018 (6) TMI 796 – CESTAT MUMBAI – 2019 (21) G. S. T. L. 561 (Tri. – Mumbai)
CESTAT MUMBAI – AT
Dated:- 20-4-2018
Appeal No. ST/85367, 85369, 85371, 85372/2018 – Order No. A/ 86466-86469/2018
Service Tax
Hon'ble Shri Ramesh Nair, Member ( Judicial )
Shri Prasad Paranjape, Advocate for appellant
Shri V. R. Reddy, Asstt. Commr. (A.R) Shri Dilip Shinde, Asstt. Commr. ( A. R. ) for respondent
ORDER
All these four appeals have been filed by Appellant M/s Holtech Asia Pvt. Ltd. on common issue against Order-in-Appeal dt. 12.10.2017 and dt. 11.10.17 passed by the Commissioner (Appeals – I), Pune. The facts of the case are that Appellant has rendered 'Consulting Engineer Services' to its parent company M/s Holtec International, USA. They filed refund claims under Rule 5 of CCR, 2004 readwith Rule 6A of the Service Tax rules, 1994 in terms of Notification No. 27/2012 CE (NT) dt. 18.06.2012 t
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tems Ltd. They have not rendered any services directly or indirectly related to M/s NTPC contract. The adjudicating authority rejected the claims on the ground that w.e.f 07.05.2014 M/s Holtech international has opened branch office in India and started fullfledged activity. Therefore as per definition of Service recipient in Rule 2 (i) of PPS Rules, 2012 – the service provider and service recipient is located in the same territory. The location of any service received by M/s Holtech International is required to be treated as the location of premises for which such registration is obtained i.e M/s Holtech Internatiola, Wakad, Pune. Hence the services rendered by the Appellant to M/s Holtech International after 02.07.2015 does not qualify as export as condition (b) & (d) of Rule 6A of the Service Tax Rules, 1994 is not satisfied. The Appellant filed appeals before the Commissioner (Appeals) who rejected the same and upheld the adjudication orders. Hence the present appeals by the Appell
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export of service as claimed by them and they are eligible for the refund. The registration of Holtech International USA project office in India with the service tax department shall not have any bearing on the services provided by Appellant to Holtech International, USA and will continue to qualify as Export of service. As per the RBI Regulations, any project office is opened for the specific purpose only and cannot carry out any other business other than the purpose of which RBI has given permission to open the project office. The project office of M/s Holtech International USA was opened to supply goods and provide services to the customer – BGR Energy Systems Ltd who had placed the purchase order dt. 15.10.2013 on Holtech International USA. The Appellant does not have any role with respect to the said Project office and has neither provided any service in relation to or to be consumed by the said project office. The reliance on Rule 2 (i) (a) of the Place of Provision of Service Ru
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with the provision of service is located, shall be treated as the country from which the service is provided. Thus in present case the establishment located in USA who has contracted for the service and not the project office will be considered as recipient of service. That even as per Rule 2 (i) (b) (i) of the POS Rules, recipient of service shall be determined based on the location of his business establishment which in this case is in the USA and therefore service provided by the Appellant will qualify as export of service. Even if assumed that services was being used in two location, then as per Rule 2 (i) (b) (iii) where service are used at more than one establishment, the establishment most directly concerned with the use of the services will be considered as the recipient of service.
3. Shri V.R. Reddy, A.C. (A.R.) and Shri Dilip Shinde, Asstt. Commr. (A.R.) appearing on behalf of the respondent reiterates the findings of the impugned orders and submits that since M/.s Holtech
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ervice is located in the taxable territory,
(b) the recipient of service is located outside India,
(c) the service is not a service specified in the section 66D of the Act,
(d) the place of provision of the service is outside India,
(e) the payment for such service has been received by the provider of service in convertible foreign exchange, and
(f) the provider of service and recipient of service are not merely establishments of a distinct person in accordance with item
(b) of Explanation 2 of clause (44) of section 65B of the Act.
The adjudicating authority has refused to allow the refund claim on the ground that in terms of provisions of Rule 2 (i) of PPS Rules the location of the service recipient automatically becomes the 'premises for which service tax registration” is obtained and once the recipient is not located outside India, the vital condition of the Rule 6 A (1) of service tax rules is not satisfied. We are not in agreement of such interpretation made by the l
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