CESTAT Mumbai has allowed refund of unutilised Cenvat credit when SMS aggregator service was provided by the assessee to foreign company (Facebook) for its subscribers in India.
Revenue department’s contention that service was provided in India as the actual service recipient, i.e. the subscribers whose SMSs were being sent or received, was located in India and the assessee-respondent was also located in India, was rejected by the Tribunal while noting that the assessee had no connection/ interaction or relation with the Indian subscribers of the foreign company, and that the service was provided under the terms and conditions of the agreement made between the foreign company and the assessee.
The Tribunal in the case of Commissioner v. Gupshup Technology India Pvt. Ltd. was also of the view that if the department chose not to issue demand notice, denying benefit of exports, it was not correct to deny refund of Cenvat credit.