Page 117 - GSTL_2nd July 2020 _Vol 38_Part 1

2020 ] FERTIN PHARMA RESEARCH v. COMMISSIONER OF CGST, NAVI MUMBAI 35
and providing results to the overseas customers would fall within the scope of
‘export service’ and eligible to cash refund of accumulated Cenvat credit under
Rule 5 of the Cenvat Credit Rules, 2004. On the denial of credit on input services
namely, Building Maintenance Service and Rent-a-Cab service, the Learned Ad-
vocate has submitted that there is nexus between the said services with the out-
put service, hence, eligible to credit.
5. Learned AR for the Revenue reiterates the findings of the Learned
Commissioner (Appeals). Distinguishing the judgment of this Tribunal in Sai Life
Sciences Ltd. case (supra), the Learned AR for the Revenue submitted that this
Tribunal decided the issue in favour of the assessee relying on earlier decision of
the Hon’ble Bombay High Court in the case of Commissioner of Service Tax, Mum-
bai-II v. SGS India Ltd. - 2014 (34) S.T.R. 554 (Bom.). The Learned AR further sub-
mitted that in SGS India Ltd.’s case, there is no reference to Place of Provision of
Services Rules, 2012 since the period involved in the said judgment relates to the
period before 2005 and the matter was decided in favour of the assessee on the
ground that export of service is always tax free. Therefore, the said ratio cannot
be applicable after enactment of Place of Provision of Services Rules, 2012. Fur-
ther, he has submitted that judgment in Advinus Therapeutic’s case, which was
passed following the ratio in Sai Life Sciences Ltd. case, also cannot be considered
to be a good law. The Learned AR for the Revenue referred to the judgments of
this Tribunal in support of their case namely, Crompton Greaves Ltd. - 2015-TIOL-
2724-CESTAT-MUM = 2016 (42) S.T.R. 306 (Tribunal) and Roha Dyechem Ltd. v.
CCE, Raigad - 2017-TIOL-3448-CESTAT-MUM and submitted that the present
facts are identical mirror image of the facts of the aforesaid judgments and hence,
the services are since performed in India, therefore, Rule 6A of Service Tax Rules,
1994 is not satisfied, consequently, the appellant are not eligible to cash refund of
the accumulated Cenvat credit.
6. Heard both sides and perused the records. Undisputedly, the appel-
lant had purchased the goods from the overseas company, on which they dis-
charged appropriate Customs duty on its import into India. Necessary tests are
carried out by them on the said goods in India and after analysis the relevant
report was submitted to the overseas Denmark Company. In the process of
providing the said output service, that is, “Technical Testing and Analysis Ser-
vice/Scientific and Technical Consultancy Service” various input services were
used on which they availed Cenvat credit. Since the services are exported, they
claimed cash refund under Rule 5 of Cenvat Credit Rules, 2004, but Revenue re-
jected it alleging that the services since performed in India, therefore, do not fall
under the scope of ‘export of service’. I find that in their own case this Tribunal
has already taken a view that the services rendered by the appellant are in the
nature of export service and hence eligible to cash refund of accumulated Cenvat
credit. Also, in the case of Advinus Therapeutics Ltd. (supra), this Tribunal more or
less under similar circumstances discussing all aspects of the issue held that sci-
entific or technical consultancy service provided for the development of drugs to
the overseas recipient of service was held to be ‘export service’. This Tribunal
observed as follows :-
“13. In the context of a catena of judgments and decisions that exports are
not taxable and, with the most palpable manifestation of export of invisi-
bles being the receipt of convertible foreign exchange from a recipient of
service located outside the country, that services are taxable at the destina-
GST LAW TIMES  2nd July 2020  117