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2016 (6) TMI 473 - AT - Service TaxRefund claim - unutilized credit accumulated prior to date of registration - Rule 5 of CCR 2004 - 100% EOU - Business Process Outsourcing activities to foreign clients - Held that:- by following the decision of Hon'ble Karnataka High Court in the case of mPortal India Wireless Solutions P.Ltd. Vs CST Bangalore [2011 (9) TMI 450 - KARNATAKA HIGH COURT], the refund of cenvat credit cannot be rejected in absence of any specific provisions which prescribe that registration is mandatory for claim of the refund of the cenvat credit. Eligibility - Refund claim - input service credit availed on service tax paid is in relation to output service - Held that:- the services for which the authority has held that they do not have not any direct nexus for providing the output service, are outdoor catering, transportation of employees, office building maintenance and air travel agency services. Rent-a-cab service is found to be essential for the transportation of the employees in the adjudication order itself. When such a service is not found irrelevant to the business, credit of input tax cannot be denied since rent-a-cab service is essential for the movement of the employees of company from & to the work place. With regard to management, maintenance or repair services, this very Bench of the Tribunal in the case of Rotork Control (India) Pvt. Ltd. Vs CCE Chennai [2010 (6) TMI 336 - CESTAT, CHENNAI] has held that said service is eligible for claim of refund. In view of the decisions of various High Courts, the appellants are eligible for credit with regard to Information Technology Services and Air Travel Agency services as these activities are relating to business. Eligibility - Refund claim - input credit for service tax paid before the service became taxable - Held that:- in the absence of any positive submission backed with material evidence, I find it difficult to entertain the plea of the appellant. Accordingly, this plea with regard to refund claim to the tune of ₹ 2958/- is rejected. Eligibility - Refund claim - Period of limitation - Held that:- the situation is not covered under the situation categorized under Section 11B as this is a case pertaining to claim of refund on the unutilized credit or input service. The definition of relevant date also does not cover refund of unutilized credit. Therefore, the notification issued under Rule 5 of CCR, in my view, cannot go beyond the primary Section which is Section 11B. It was also submitted by appellant that there was an amendment brought in the present Budget 2016 wherein there were certain proposals made and it is only prospective in nature and since the period of dispute is only retrospective in their case it would not get covered with the amendment and prayed that this portion of the refund order holding that refund is time-barred be set aside. But, I find that the first appellate authority would not have had a chance to look into the amendment to come to the conclusion. In the interest of fairness, and justice, I remand this aspect of the matter to the Commissioner (Appeals) for him to examine this aspect in the light of the amendment. Appellant is at liberty to furnish all evidence and records before the first appellate authority for him to arrive at a conclusion on this issue.
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