2022 (11) TMI 1222 - AT - Service Tax

Denial of refund claim - input/input service used for export of service - renting of immovable property service (car parking) - work contract service - telephone service - club and association service - jurisdiction of tribunal to decided on case of rebate claim - HELD THAT - It is seen that the order in ROSA IMPEX PVT. LTD. VERSUS COMMISSIONER OF GST CENTRAL EXCISE (APPEALS) THANE 2022 (4) TMI 1476 - CESTAT MUMBAI arises from claim for rebate of tax paid on inputs/input services utilized for exports of service that are not liable to tax and thereby excluded from the ambit of CENVAT Credit Rules 2004 itself. Tax paid on procurement of renting of immovable property service and works contract service - HELD THAT - The decision of the first appellate authority for the earlier period not having been challenged further by Revenue should have been applied to the impugned period also. Refund of tax on procurement of telecom service to be utilized by employees of the appellant - HELD THAT - It is seen that the first appellate authority has objected to the claim for refund of tax on procurement of telecom service to be utilized by employees of the appellant even though there is no evidence on record to show the same having been used for personal consumption of the individuals concerned and presumption on that score without evidence does not justify denial of CENVAT credit or for denial of refund claim - The decision of the Tribunal in MANIPAL ADVERTISING SERVICES PVT. LTD. VERSUS CCE. MANGALORE 2009 (10) TMI 434 - CESTAT BANGALORE makes it amply clear that as long as the address on the invoice is that of the assessee and service tax has been fully discharged there is no ground for rejection of the claim. It is settled law that membership of the trading association is an essential requirement for manufacturers and service providers. Appeal allowed.

Summary

Issues:
Challenge to disallowance of claim for refund under rule 5 of CENVAT Credit Rules, 2004 for services procured by the appellant for providing exported service.

Analysis:
The appeals were filed against an order-in-appeal dated 30th October 2019 by the Commissioner of GST & Central Excise, Mumbai, which granted only partial relief regarding the disallowance of a part of the claim for refund under rule 5 of CENVAT Credit Rules, 2004. The appellant contested the decision, specifically focusing on the disallowance related to services such as 'renting of immovable property service', 'work contract service', 'telephone service', and 'club and association service' procured for providing the exported service. The appellant argued that previous favorable decisions existed for 'renting of immovable property service' and 'work contract service', citing precedents like Manipal Advertising Services Pvt Ltd and Overseas Infrastructure Alliance (I) Pvt Ltd.

The Authorized Representative for the respondent suggested that the matter should be referred to the Government of India for revisionary jurisdiction, as per the Tribunal's decision in Rosa Impex Pvt Ltd case. It was emphasized that if the dispute were to be heard by the Tribunal, the detailed discussion and rejection of the refund claim by the first appellate authority should be upheld. The case of Rosa Impex Pvt Ltd involved a claim for rebate of tax paid on inputs/input services utilized for exports of services not subject to tax under the CENVAT Credit Rules, 2004.

Regarding the tax paid on 'renting of immovable property service' and 'works contract service', it was noted that since the decision of the first appellate authority for the earlier period was not challenged further by the Revenue, it should have been applied to the impugned period as well. The first appellate authority's objection to the claim for refund of tax on 'telecom service' used by the appellant's employees was deemed unjustified, as there was no evidence indicating personal consumption. Precedents such as Manipal Advertising Services Pvt Ltd and Overseas Infrastructure Alliance (I) Pvt Ltd were cited to support the appellant's position on these matters. The Tribunal emphasized that the address on the invoice being that of the assessee and full discharge of service tax were sufficient grounds to support the refund claim. Additionally, the importance of membership in trading associations for manufacturers and service providers was reiterated based on legal precedents.

In conclusion, the impugned order was set aside, and the appeals were allowed, indicating a favorable outcome for the appellant in challenging the disallowance of the claim for refund under the CENVAT Credit Rules, 2004.