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2024 (3) TMI 1286 - AT - Service TaxRefund of CENVAT Credit - services related to Information Technology (ITSS) - export of services or not - eligibility to avail CENVAT credit when the supplier of services pays service tax on a mistaken notion of law - credit can be denied for the difference in the ST-3 Returns and CENVAT credit Register or not. Whether the appellants are eligible for claiming refund on the ITSS Services claimed to have been rendered to M/s Agilent Technologies, Singapore? - HELD THAT:- On going through the agreement, one gets understanding that the same are not in the field of ITSS. An addendum of a later date cannot be construed to be an order valid during the relevant period. Therefore, there was no specific order placed by M/s Agilent Technologies, Singapore, on the appellant, for providing ITSS Services during the relevant period. It is found that the addendum and the certificate issued much later than the impugned period that to after rejection of the refund cannot take place of an “Order” as envisaged in the proviso to Rule 3(1)(iii) of Export of Service Rules, 2005. It is found that the argument of the appellants that development of Software Services rendered by the appellants is linked to the R & D Agreement is not acceptable. The appellants have also taken the plea that prior to 16.05.2008, they have claimed refund of Business Support Services and not in respect of ITSS Services and thus, partial refund claim was wrongly rejected to the tune of Rs.2,81,87,493/-. This claim needs to be verified from the records by the Adjudicating Authority. Though, it is held that during the relevant period, the appellants are not entitled to refund of CENVAT credit on services utilized for ITSS Services, they would be eligible for the refund of CENVAT credit on services utilized for other services, if otherwise, applicable. For this reason, it is found that the matter requires to go back to the Original Authority. Whether the appellants are eligible to avail CENVAT credit when the supplier of services pays service tax on a mistaken notion of law? - HELD THAT:- As there is no dispute regarding the fact of duty being paid on the generator, credit cannot be disallowed at the service receiver”s end. Learned Authorized Representative for the Department submits that all the cases cited by the appellant are in the realm of Central Excise and therefore, not applicable to the issue of service tax. This proposition cannot be accepted. The basic principle of CENVAT credit being same under Central Excise & Service Tax regime, any differentiation in this regard would be artificial. Whether the credit can be denied for the difference in the ST-3 Returns and CENVAT credit Register? - HELD THAT:- Appellant submitted that learned Commissioner has not given any findings on the same - In the case of M/s Temenos India Pvt. Ltd. [2020 (2) TMI 354 - CESTAT CHENNAI], the Tribunal held Further I find that the Commissioner (Appeals) in the impugned order has observed that the appellants have not submitted any 11 documents to prove their contention that they have rightly availed the cenvat credit. It appears that both the authorities have not examined all the documents which have been filed by the appellant in support of their refund claim. In view of this, I set aside the impugned order and remand the matter back to the original authority to examine the refund claim on the basis of other documents filed by the appellant. Refund cannot be rejected for the reason that there is a discrepancy between the CENVAT record and ST-3 Returns. However, the submissions of the learned Authorized Representative, agreed upon, that the same can be allowed only if records maintained by the appellants demonstrate that the input services were used/ utilized for the export of services - the issue requires to travel back to the Original Authority for a re-consideration in view of our findings as above. The appeal is allowed by way of remand to the Original Authority.
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