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2016 (5) TMI 1053 - AT - Service TaxRefund claim - Allowability of input service Cenvat credit - Claim was not in accordance with foreign exchange realisation - Held that:- Learned Commissioner (Appeals) has not at all examined what was the issue before him in Appeal No.21/2013 but has abruptly come to the conclusion on a different premise holding inadmissibility of certain input credit. Therefore, the matter is remanded to him re-examine the controversy before him as emanated from the Order-in-Original and upon hearing the appellant shall pass appropriate order. Clearing & Forwarding Agency Services and Membership Fees - Held that:- by considering the necessity of Carrying & Forwarding Agency Service, in the course of import and export, the appeal is allowed on this count disallowing CENVAT credit on Membership Fees, which has no connection to the output service provided and appellant is entitled to the refund which shall be recalculated by the adjudicating authority, taking the disallowance aspect hereby ordered. Air Travel Agency Service, Chartered Accountant's Service, Insurance (Motor Vehicle) and Customs House Agents Service - Held that:- So far as the Air Travel Agency and Chartered Accountant's service is concerned, there shall be no denial of CENVAT credit, for the reason that the appellant being an importer and exporter of services, would be requiring service of Air Travel Agency and also certification by Chartered Accountant in respect of the foreign exchange receipts as well as other aspects. So far as the insurance on the motor vehicle is concerned, the period in question being Apr.-12 to Jun.-12 and amendment to the law has been made from 01.04.2011. Learned adjudicating authority shall re-examine the admissibility of CENVAT credit on such services in accordance with law. Since no finding has been made by both the authorities below, in their orders, appeal is remanded on this limited count to examine that aspect. Management, maintenance or repair service - Held that:- the adjudicating authority noticed that the same relates to supply of foods and ineligible tangible goods. He did not examine this aspect thoroughly for which he himself was under confusion without specifying the amount of credit allocable to this service and evidence if any before him. However, considering that remanding back the matter for a small amount of credit shall serve no useful purpose but shall result in waste of time and public money, the appeal on such count is allowed. Disallowance of Cenvat credit - Invoice carried the defective address - Held that:- It is relevant for the law that if the service has been utilized, the authority should cause enquiry as to the genuineness of the service provider and allow the same provided the tax paid by appellant had gone into the treasury. Therefore, it is left to the authority to enquire who was the service provider in respect of credit of ₹ 38,811/- and result of the enquiry confronted to the appellant for rebuttal. Upon hearing the appellant, appropriate order shall be passed. Works contract service - Held that:- Learned adjudicating authority did not examine what was the works contract service availed by the appellant. Therefore, he has to examine the relevancy of such service and hearing the appellant thoroughly shall pass appropriate order. Business auxiliary service (membership fee) - Held that:- it does not appeal to common sense as to relevancy thereof to allow CENVAT credit. Accordingly, no claim thereon shall be admissible. Insurance auxiliary service (motor car) - Held that:- the authority has not at all examined as to relevancy and evidence thereof to declare that ineligible input. Therefore, he should examine the relevancy of the services and its nexus as well as integral connection to the output service and hearing the appellant shall pass appropriate order. Defective invoices - Held that:- the authority has not at all examined any aspect thereof. The disallowance being limited to ₹ 444/- on two counts, the authority shall grant opportunity to the appellant to rectify the defect and pass appropriate order upon hearing the appellant. Validity of adjudicating authority order - not at all examined the justification for disallowance of CENVAT credit on the respective services - Held that:- in absence of any examination by the adjudicating authority it is premature to pass any order as to justification for eligibility thereof. Therefore, learned adjudicating authority shall rehear the appellant on each and every aspect of the disallowance and hearing the appellant both on facts and evidence, shall apply the law and pass a reasoned and speaking order. Maintenance and repair service (gardening) - Held that:- it does not appeal to common sense as to relevancy thereof to the output service. Therefore, no CENVAT credit thereof shall be admissible. Common area / parking charges and supply of food and tangible goods - Held that:- for no description and examination of evidence and application of law, those items shall receive scrutiny of the adjudicating authority for passing reasoned and speaking order granting fair opportunity of hearing to the appellant. Legal consultancy service - Held that:- CENVAT credit thereon cannot be denied since that is permissible being inextricably connected with the business operation. Business auxiliary service (not used for output service) - Held that:- shall receive the scrutiny of the adjudicating authority for no examination done by that authority and hearing the appellant, he shall pass appropriate order. Parking charges, supply of foods and tangible goods and interior decoration service, civil work - Held that:- it would be necessary for the adjudicating authority to say the reason for his disallowance since the order is cryptic and unreasoned. Therefore, appellant is entitled to reasonable opportunity of hearing and considering the appellant's pleading as well as evidence, the authority shall pass order in the re-adjudication proceeding. Business Auxiliary Service - Held that:- for no reasoning stated, learned adjudicating authority shall scrutinise the same and hearing the pleading of the appellant shall pass appropriate order in accordance with law. - Appeal disposed of
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