MOUNT KELLETT MANAGEMENT (I) PVT. LTD. Vs. COMMISSIONER OF SERVICE TAX, MUMBAI-I
LAWS(CE)-2015-6-22
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on June 25,2015

Mount Kellett Management (I) Pvt. Ltd. Appellant
VERSUS
Commissioner Of Service Tax, Mumbai -I Respondents




JUDGEMENT

ANIL CHOUDHARY,MEMBER (J) - (1.)THE assessee is in appeal against Orders -in -Appeal No. BR/72/2012 dated 30.9.2012 and No. PD/519/ST -1/2014 dated 16.4.2014 passed by the Commissioner of Central Excise (Appeals), Mumbai -I. As the issues in appeals are common, they are being disposed of together for sake of convenience.
The issues which arise in these appeals are -

(A) Whether the service exported is used outside India as required under the provisions of Rule 3(2) of the Export of Service Rules, 2005.

(B) Whether the consideration for service exported have not been received in convertible foreign exchange.

(C) No correlation between export invoices and FIRC

(D) Whether Rent -a -Cab service for staff and life insurance for staff is allowable as input service.

(E) Whether receipt (foreign remittance) can be claimed on the basis of service provided during the refund period, although invoice was raised after the quarter, when service was rendered.

(F) Whether rejection of refund is justified on the ground that the export invoices for service which were raised for the previous quarter in the next quarter i.e. for January -March, 2012 in the next quarter April -June, 2012, rebate has been claimed w.e.f. 1.4.2012, which amounts to double claim.

(2.)THE details of refund claim are as under: -
(3.)THE appellants are service provider; exporting 100% of its service being a 100% Exporter to one single client located outside India viz. Mount Kellett Capital Management Mauritius Ltd." (MKML in short) located at Mauritius. The service is in the nature of Banking and other Financial Services. As per the agreement between the appellant and foreign client, the appellant is entitled to get remuneration on cost plus basis. As per the agreement at end of every quarter, the appellant raised bill on their client. The appellant is providing advice, recommendations in the form of reports or investment memoranda with regard to suitable investment opportunities in India for the use of their client located abroad. Based on the report of the appellant, the client, who is located abroad, utilizes those reports for making investment decision and for further advice to the Fund managers located abroad, who are interested for investment in India. As the appellant is an exporter of service, being unable to utilize the input service credit on the various input services utilized by them, they preferred to file refund claims from time to time as indicated in table above in terms of rule 5 of Cenvat Credit Rules, 2004 read with Notification No. 5/06 -CE dated 14.3.2006. The refund was either rejected or allowed in part as indicated above on the various grounds in para 2.
The first issue is whether the service provided from India were used outside India. The learned Counsel for the appellant urges that, as required under the provisions of Rule 3(2) of the Export of Service Rules, 2005 they have provided the services from India, as they have prepared the reports in India and sent to their client located in Mauritius. The report has been used by their client located outside India for further advising the clients of MKML and as such they satisfy the condition for export of service. It is further urged that the receiver of services abroad utilizes the reports (services) for making investment decisions for investing in India. However, it is immaterial how the foreign client utilizes the reports prepared by the appellant. As the services have been utilized by the receiver of service, who are located outside India, by no stretch of imagination, the same can be said to be used in India.

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