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2015 (10) TMI 2413 - AT - Service TaxRejection of Refund Claim under Rule 5 of Cenvat Credit Rules, 2004 – 100% EOU – Period pertaining to July 2005 to December 2005 - Maintenance or Repair of Software (MRS) - Refund not claimed on software development and software consultancy – Appellant stated that maintenance of software is a taxable service under category of 'management, maintenance or repair service' under Section 65 (64) – Revenue contends that appellant could not have got refund under Rule 5 but they could have got rebate under Notification No. 12/2005-ST - Appellant did not produce all export invoices and corresponding agreement to prove they are providing service of management, maintenance and repair of computer software. Difference in opinion – Majority order. Held That:- In order to claim refund it is necessary to provide copy of invoices issued during July to December 2005 and corresponding agreement between appellant and service receiver and along with category of service under which service claimed is provided - Commissioner (Appeals) did not examine all contracts in order to decide whether the activity is of "maintenance or repair" and has to quantify separately the amount involved relating to maintenance and repair service as also other service - It is necessary to examine whether appellant is eligible for availing the credit under Rule 3 before granting of refund under Rule 5 - Matter remanded back to Commissioner.
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