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2013 (12) TMI 1375 - AT - Service TaxRejection of rebate claim - Notification No. 12/2005-S.T., dated 19-4-2005 - Input services used in development of software exported out of India - Availment of CENVAT Credit - Held that:- The input services in respect of which rebate has been claimed are internet/telecommunication services, housekeeping services, professional services, outdoor catering services, renting of immovable property services, maintenance & repair services, security agencies services, rent-a-cab operator services, etc. In my view all these services would be necessary input for a software unit and hence, it would be totally incorrect to deny rebate on the ground that the same are not the services required for development of software more so, when during the period prior to the period of dispute and they paid after the period of dispute, the department has been granting rebate in respect of these very services. Appellant are a 100% EOU i.e. a STP unit and their domestic transactions are rare, there would not be no occasion for them to utilize the Cenvat credit if any availed when it is not the case of the Department that they have also claimed cash refund of accumulated Cenvat credit under Rule 5 of Cenvat Credit Rules, 2004. It would not be correct for the department to conclude that they have availed Cenvat credit just on the basis of Col. 5b of the ST-3 Return without checking the records, which are required to be maintained by the appellant for availment of Cenvat credit in respect of the provisions of Rule 9(6) of the Cenvat Credit Rules, 2004. The availment of Cenvat credit in respect of input or input services is a matter of fact which has to be verified from the records maintained by the appellant and no inferences can be drawn in this regard merely from the ST-3 Returns, when the appellant, from the very beginning are pleading that the entry in Col. 5b regarding availment and utilization of the Cenvat credit was made by them due to mistake and that the figures regarding utilization of Cenvat credit mentioned in this col. is actually the figure of rebate claim which has been granted to them. Matter is remanded back to the original adjudicating authority for deciding the rebate claim filed by the appellants afresh. If from the records maintained by the appellant, it is clear that they have not availed any Cenvat credit the rebate claim would have to be accepted - Decided in favour of assessee.
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