Case Law Details
Commissioner of Service Tax Vs. M/s. Gupshup Technology India Pvt. Ltd. (CESTAT Mumbai)
Respondent M/s Gupshup Technology India Pvt. Ltd (previously known as Webaroo Technology Pvt. Ltd.) are engaged in providing services under the category of Business Support Service (BSS). They provide the SMS Aggregator services to M/s Facebook under an agreement for which the bills were raised to M/s Facebook, Ireland and the amount was received in convertible foreign currency. They filed four refund applications towards refund of unutilized cenvat credit of input services used for export of services in terms of Rule 5 of Cenvat Credit Rules,2004 read with Notification No. 27/2012 CE (NT) DATE 18.06.2012. The Respondent claimed that the services were exported to their client M/s Facebook Ireland Limited during the period January, 2014 to December, 2014. The claim for the period January to March 2014 and April to June 14 were partly sanctioned whereas the two claims pertaining to period i.e July to Sep 14 and Oct to Dec14 were rejected on the ground that the services of BSS provided by the Respondent to M/s Facebook does not qualify as export of service. The Respondent filed appeals against the rejection of the claim whereas the revenue filed appeals against sanctioning of claims. The Appellate Commissioner allowed the appeals filed by the Respondent whereas the appeals of the revenue were rejected.
Rule 3 of the Place of Provision of Service Rules, 2012 and its application to the instant case, we find that the proviso to said Rule states that in case location of the service provider is not available in the ordinary course of business, the place of the provision shall be the location of the provider of Service. Further as per Rule 2 (i) of the said Rules the Location of Service Provider is the location of his business establishment. In the case in hand there is no dispute about the facts that the service recipient is Facebook which is located outside India and thus its location is available. Hence the Indian subscribers of Facebook cannot be termed as Service Recipient. In such case even the Rule 8 of POP would not apply as the service recipient i.e Facebook is situated in Ireland which is located outside India a non taxable territory.
Please become a Premium member. If you are already a Premium member, login here to access the full content.
