2018 (9) TMI 1519 – CESTAT CHENNAI – TMI – Refund of service tax – export of services – Place of provision of service – main contention put forward by the department is that the appellant is an intermediary and therefore the place of provision of service is within India – input services – Held that:- The appellants was engaged by M/s.H&H, China. So also, it is admitted that appellants have provided services to H & H, China. The invoices were raised on H & H, China by the appellant. The only conclusion therefore possible is that H & H, China is the intermediary if at all, and not the appellant – The recipient of logistic services being situated outside India, and the consideration having received in convertible foreign currency, the transaction has to be treated as export of service – thus appellant has facilitated the re-export of the goods.
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Input services – allegation is that major part of the input services were availed for import of goods and not export of services – Held tha
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; Forwarding Agent and for GTA services. They rendered LogisticSupport service to the shipper namely M/s.Jinneng Energy Technologies Ltd., China (JETL, for short) and received consideration in convertible foreign exchange. While executing such service, they availed various input services for export of logistics services and hence filed a refund claim on 28.02.2017 for ₹ 50,11,369/- under Rule 5 of Cenvat Credit Rules, 2004 for the quarter ending 30.09.2016. Show cause notice dt. 26.04.2017 was issued to the appellants proposing to reject the refund claim stating that activities of the appellant did not appear to be in relation to export of services. After due process of the claim, the original authority rejected the refund claim. In appeal, Commissioner (Appeals) upheld the same. Hence the appellants are before this Tribunal. 2. On behalf of the appellant, Ld. Counsel Shri V. Ravindran submitted that appellants are licensed customs broker and had carried out logistics services in
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n Solar Power India Pvt.Ltd., Chennai. The said containers arrived at Tuticorin port on 29.03.2016 but due to unforeseen business circumstances, the importer could not take delivery of the containers and therefore after negotiations, the shipper agreed to recall the goods and carry them back to China. The appellant had entered into agreement dt. 1.1.2015 with H & H (Tianjin) International Forwarders Co. Ltd., China. As per this agreement, H & H has appointed MAS (appellant) to facilitate re-export of goods. Thus the appellant had entered into logistics services for enabling the warehousing service, CFS services etc. for return / export of the goods to the shipper. They availed various input services for which they paid service tax and availed cenvat credit. The input services were indispensable for getting the goods reshipped to the shipper as permitted by the latter. Therefore logistics services rendered being an export of service, the appellant is eligible for credit of servi
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d on input services is not eligible for refund since the place of provision of service is within India. 4. Heard both sides. The main contention put forward by the department is that the appellant is an intermediary and therefore the place of provision of service is within India.The department has relied on Rule 9 of Place of Provision of Rules 2012, and held that since, the appellant who is an intermediary is within India, the place of providing service is within India. From the facts it is seen that appellants was engaged by M/s.H&H, China. So also, it is admitted that appellants have provided services to H & H, China. The invoices were raised on H & H, China by the appellant. The only conclusion therefore possible is that H & H, China is the intermediary if at all, and not the appellant. The recipient of logistic services being situated outside India, and the consideration having received in convertible foreign currency, the transaction has to be treated as export of
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