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Holtec Asia P. Ltd V/S Commissioner of Central Excise, GST Pune-I


Company & Directors' Information:- HOLTEC ASIA PRIVATE LIMITED [Active] CIN = U74999PN2010FTC136732

Company & Directors' Information:- GST PRIVATE LIMITED [Strike Off] CIN = U27104MH2002PTC136410

Company & Directors' Information:- HOLTEC (INDIA) PVT LTD [Active] CIN = U30009GJ1989PTC011850

Company & Directors' Information:- A.S.I.A PRIVATE LIMITED [Active] CIN = U74999KA1983PTC005591

Company & Directors' Information:- ASIA CORPN. PRIVATE LIMITED [Active] CIN = U51102TN1946PTC000135

    Appeal Nos. ST/85367, 85369, 85371, 85372/2018 (Arising out of Order-in-Appeal No. PUN-EXCUS-001-APP-0480/2017-18 dt. 12.10.2017, PUN-EXCUS-001-APP-471 to 473/2017-18 dt. 11.10.2017 passed by the Commissioner (Appeals) Central Excise, Pune-I) and Order Nos. A/86466-86469/2018

    Decided On, 20 April 2018

    At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai

    By, THE HONORABLE JUSTICE: RAMESH NAIR
    By, MEMBER

    For Petitioner: Prasad Paranjape, Advocate And For Respondents: V.R. Reddy and Dilip Shinde, Asstt. Commr. (A.Rs.)



Judgment Text


1. 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 read with Rule 6A of the Service Tax rules, 1994 in terms of Notification No. 27/2012 CE (NT) dt. 18.06.2012 towards Cenvat Credit paid on input services used in providing output services. The refund claim was objected by the refund sanctioning authority on the ground that since M/s. Holtech International has taken registration on 02/07/2015 at Wakad, Pune, hence as per definition of service recipient in Rule 2 (i) of PPS Rules, the location of service recipient is premises for which such registration has been obtained i.e India. As both service provider and service recipient are located in India as per Rule 8 of PPS Rules, 2012, the place of provision of Services shall be the location of service recipient of service. The condition (b) and (d) of Rule 6A of STA Rules has not been satisfied and therefore the impugned service do not qualify as export of service. The Appellant filed reply to the said objection contending that M/s. Holtech International is having Project office in India who is rendering services solely to NTPC for their 2*800MW Lara Super Thermal Project received from BGR Energy Systems 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 full-fledged 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 International, 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 Appellant.

2. Shri Prasad Paranjape, Ld. Counsel for the Appellant submits that they are providing engineering, design and drawing services to their parent company i.e. Holtec International, USA and receiving the consideration in foreign exchange therefore their service qualify as export and are entitled for refund. He submits that as per the law settled in case of Paul Merchant Ltd : (2013 (36) STR 257), Microsoft Corporation India Pvt. Ltd : 2014(36) STR 766), Verizon Communication India Pvt. Ltd : 2018 (8) STR GSTL 32) (Del), SGS India Pvt. Ltd : 2014(34) STR 554) (Bom.), the recipient of service is the person who has contracted to avail the services and who is obliged to make payment for the services. In the present case admittedly the person who is contracted for service is Holtech international USA and the payment is also received from them in foreign exchange. The Appellant thus fulfills the requirement of Rule 6A of the Service Tax Rules, 1994 and therefore their services qualify as 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 Rules, 2012 (POPS Rules') is misplaced. The lower authorities have simply relied upon the place of registration without giving any cognizance to the word "the recipient of service" used in the said rule. As per section 65B(44), Explanation 3(b) of the Finance Act, 1994 an establishment of a person in the taxable territory and any of his other establishment in a non-taxable territory shall be treated as establishment of distinct person. The establishment of Holtec International in India and USA shall be treated as distinct persons. The Appellant did not provide any service in the project office in India which has been confirmed by an independent chartered Accountant's Certificate therefore denial of export status to the appellant on the basis of above contention is incorrect. He draws analogy with Section 66A of Finance act to submit that where the provider of service has his establishment in two countries, the country where the establishment of the service provider is directly concerned 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 International USA has office in India, therefore the services cannot be said to have been rendered outside India.

4. We have heard both the parties and gone through the facts of the case. It is undisputed fact that the Appellant had rendered service to M/s. Holtec International USA and the consideration towards the same has been received in Foreign Exchange. Further the office of M/s. Holtec International USA in Wakad, Pune was only for the purpose of providing services to the customer - BGR Energy Systems Ltd. who had placed the purchase order dt. 15.10.2013 on Holtech International USA. Such company opened office at Pune had no connection with the services rendered by the Appellant. The instant refund claims were filed on account of services rendered outside India and the claim has been filed in terms of Rule 5 of Cenvat Credit Rules, 2004. In terms of provisions of Rule 6A (1) of the Service Tax Rules, 1994 the services are treated as export of service when : -

(a) the provider of service 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 lower authorities. The place of provision of service rules cannot be applied to the refund being claimed in terms of Rule 5 of Cenvat Credit Rules and to interpret the export of service. In the present case the services were rendered to service recipient who is located outside India. The Indian Project office of M/s. Holtech International Ltd., USA was not at all concerned with such services. Further in terms of Explanation 3 to Section 65B (44) different establishment located in non taxable territory and taxable territory are to be treated as establishment of different persons. It reads as under :

service" means any activity carried out by a person for another for consideration, and includes a declared service, but shall not include-

Explanation 3. - For the purposes of this Chapter,-

(a) an unincorporated association or a body of person

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s, as the case may be, and a member thereof shall be treated as distinct persons; (b) an establishment of a person in the taxable territory and any of his other establishment in a non-taxable territory shall be treated as establishments of distinct persons. Explanation 4. - A person carrying on a business through a branch or agency or representational office in any territory shall be treated as having an establishment in that territory; It is thus clear that the office of M/s. Holtech International situated in USA is different establishment from its project office in India. In the present case it is the US establishment of M/s. Holtech International, USA who has availed the services from the Appellant and therefore the services rendered by Appellant would clearly fall under the category of Export of Service in terms of Rule 6 A of Service Tax Rules, thereby making them eligible for refund claimed by them. We therefore set aside the impugned orders and allow all the appeals with consequential reliefs, if any.
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