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2016 (9) TMI 142 - AT - Service TaxRefund claim – CENVAT credit – STP - consulting engineer service - discipline of computer hardware engineering or computer software engineering - no unutilized CENVAT credit could have existed as the credit column in the ST-3 returns pertaining to the period of refund claim was blank – Held that: - The export of software, in a 100% EOU, at the relevant point of time was not a taxable service. However, the assessee had paid input tax on various services. The Tribunal has categorically held that even though export of software is not a taxable service but still the assessee cannot be denied the Cenvat credit. The assessee is entitled to the refund of Cenvat credit. This was held in the case mPortal India Wireless Solutions (P) Ltd v Commissioner of Service Tax, Bangalore 2011 (9) TMI 450 - KARNATAKA HIGH COURT – refund eligible. Re-classification – consulting engineer service - taxability – Held that: - there is no statutory provision by which a tax administrator can step in to rule that tax is not leviable, except on a claim by an entity to non-exigibility. There is no allegation of short-levy of tax against the appellant and the appellant has not made a claim that they are not liable to tax. The liability to pay tax having been accepted and the assertion that the taxable services are exempt only by reason of export having been accepted - Revenue cannot, take a stand that the service for which registration has been taken is not taxable – appeal disposed off.
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