1. These are two appeals against the common impugned order dated 09/04/2012 of Commissioner (Appeals), Delhi - II. The brief facts of the case are that the appellants are engaged in providing various services taxable under Finance Act, 1994 to Indian as well as foreign based service recipients. These services are mainly categorized under "business auxiliary service", "business support service", "management", "maintenance or repair service", "management consultancy service" etc. In general terms, they have provided various services broadly called call centre services, back office data processing services (BPO) to American Express International Inc. located outside India. The appellants availed credit of tax paid on various input services availed by them. They have paid service tax on output services provided in India. In order to claim refund of unutilized credit lying in their accounts, the appellants filed applications in terms of Rule 5 of Cenvat Credit Rules, 2004 readwith Notification 5/2006 - CE (NT) dated 14/03/2006. The claims pertain to period April 2006 to December 2008. The Original Authority upon adjudication held that the appellants are not entitled for the said claims and rejected the same. On appeal filed by the appellant, the learned Commissioner, vide his impugned order, upheld the said rejection.
2. The learned Counsel for the appellant submitted that they were involved in providing services to their overseas affiliates in terms of the agreements entered into. Explaining the relevant provisions of the said agreement, the learned Counsel submitted that the services are in the nature of export data management, information analysis and control activities, bank reconciliation by way of matching account information, processing of transaction data relating to credit card, reconciliation of inter-company payables/receivables, compilation and maintenance of general ledgers for ready excess by the client etc. They have provided call centre services to foreign affiliates during the relevant period. They have set up STPI unit with the approval of the Competent Authority for this purpose. In the call centre operations they mainly undertake to attend to the telephone calls made by the customers of overseas affiliates who are located outside India. This telephone calls are mainly with reference to credit card transaction, banking and financial transaction, travel relating transaction etc. The service rendered by them are squarely covered under the category of business auxiliary services in terms of Section 65(19) which clearly stipulates that any customer care service provided on behalf of the client will be taxable under BAS. Notification 8/2003-ST dated 20/06/2003 exempted taxable service provided by call centres with the clients. For this purpose, the notification defined call centre as follows:-
"(i) "call centre" means a commercial concern which, -
(a) provides assistance, help or information; or
(b) contacts customer including prospective customer,
For the purposes of sales, telemarketing, payments through telephone, leased lines, satellite links, mail, fax, web chat and use of information system for monitoring and recording information on behalf of another person;"
The said notification was rescinded w.e.f. 01/03/2006 accordingly their service are taxable during the relevant period.
3. The learned Counsel submitted that similar services were provided by the appellant to Indian clients and they have been discharging service tax under BAS/BSS. They were registered for discharging service tax and the same has been duly accepted by the Department. However, the lower Authorities rejected the refund claims on the ground that services rendered to foreign affiliates are not falling under taxable category. The learned counsel submitted such dual approach is legally untenable.
4. It was further submitted that the Business Support Service/Business Auxiliary Service provided by the appellant during the relevant period qualify as export of service. All these were delivered and consumed outside India. Reliance was placed on the decision of the Tribunal in Microsoft Corporation (I) (P) Ltd. vs. CST, New Delhi reported in : 2014 (36) S.T.R. 766 (Tri. - Del.), BA Call Centre India Pvt. Ltd. vs. CST, Gurgaon reported in 2016 - TIOL - 2322 - CESTAT - DEL. and Paul Merchants Ltd. vs. CCE, Chandigarh reported in: 2013 (29) S.T.R. 257 (Tri. - Del.). Further reference was also made to the circulars dated 24/02/2009 and 13/05/2011 issued by the Board.
5. The learned Counsel submitted that on identical set of facts on the same services, the appellant filed refund claims and the same have been sanctioned for the period April 2012 to June 2012, April 2014 to September 2014 and October 2014 to September 2015. The total amount sanctioned amount works out to more than Rs. 65 crores. The orders sanctioning such refunds have been accepted by the Revenue and there is no appeal on the same. As such the Revenue has later accepted their position regarding eligibility of refund claims.
6. The learned AR reiterated the findings of the lower Authorities. The taxability of output service rendered by the appellant to their parent company has to be examined in terms of the agreement entered into. The impugned order records that the terms of agreement and the invoices raised for rendering service did not bring out categorically the nature of service provided by the appellant for specific classification of tax liability. It was further submitted that the documents submitted by the appellant have explained the services in different terms. Even the supporting documents based on which the claims were filed have mentioned the services in a very general and broad terms. Finding that no specific classification of taxable service could be arrived at, the lower Authorities rejected the refund claims.
7. We have heard both the sides and perused the appeal records. The dispute in the present appeals relates to the eligibility of the appellant for refund in terms of Rule 5 of Cenvat Credit Rules, 2004. We note that the lower Authorities rejected their claim only on the ground that they could not identify the specific classification of services rendered by the appellant to the foreign affiliates and as such these services were held as nontaxable. We note that the agreement and the documents submitted by the appellant makes it clear regarding the scope of services rendered by the appellant. We have also, briefly, noted the nature of service earlier in this order. Admittedly, the appellants are providing what is generally called as 'call centre service' or 'BPO service' to their foreign affiliates. On a perusal of the agreement entered into by the appellant with the service recipient, we note the nature of service cannot be disputed. We note that the lower Authorities have repeatedly mentioned that they are not able to identify the exact classification and taxability of the services rendered by the appellant to their foreign affiliates. In this connection it is pertinent to note for similar set of services, the appellant were discharging service tax when they are rendering the same in India to Indian clients. The tax liability discharged under BAS and BSS have been accepted by the Revenue and there is no dispute in this regard. Strangely, when same set of services were rendered to a foreign clients the lower Authorities have arrived at the decision that the services rendered by the appellant could not be categorized under any tax entry under Finance Act, 1994, because of lack of clarity and failure of the appellant to support his case. We find such assertions are without basis and the lower Authorities have fallen in complete error in examining the basic issues involved in the dispute. In fact it would appear that substantial effort and discussion by the Original Authority was to examine various general principles that are not having direct relevance to the case. Admittedly, on the same set of facts the Department sanctioned refund claims for the subsequent periods and accepted the fact that the appellants are providing ta
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xable service for foreign clients and the accumulated Cenvat credit availed on input services are to be refunded to them. On this ground alone, the stand taken by the lower Authorities in the impugned order is liable to be set aside. The Revenue cannot take different approach on the same set of facts during different periods. 8. In view of the above facts and discussion, we find that the impugned order cannot be legally sustained. Accordingly, the same is set aside. The matter is remanded back to the Original Authority who will examine the claim for sanction in line with the observations made above. The appellant shall be provided adequate opportunity to present their case. Since, the claims were relating to period April 2006 onwards, the Original Authority shall take efforts to dispose of the claims at the earliest. With these observations the appeals are allowed by way of remand.