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TMI Blog2010 (12) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... avel and medical insurance which accumulated due to export of services by them. The Revenue is disputing the allowances of the refund claim for the outdoor catering and meal coupons. 2. The facts of the case are that the assessee filed a refund claim for the period starting from April 2006. As the assessee being an exporter of Business Auxiliary Services to their foreign clients and they have availed various input services in the course of their business. As the said input service credit could not be utilised by them, they filed a refund claim under Rule 5 of the CENVAT Credit Rules, 2004. The adjudicating authority has allowed the refund claim but the lower appellate authority has rejected the claim for local travel and medical insur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not entitled for credit of these input service in terms of Rule 2(l) of the CENVAT Credit Rules, 2004. He also submitted that prior to 1-5-2006, the assessee was providing the service to their foreign clients under the head of Business Auxiliary Service, hence the assessee has correctly taken the credit and is entitled for refund claim under Rule 5 of CENVAT Credit Rules, 2004. 4. On the other hand the learned DR submitted that the services which the assessee are exporting have come under the service tax net with effect from 1-5-2006. In that event, any input service credit availed by them prior to 1-5-06 is not eligible for credit. He clarified that the services were not taxable which the assessee were exporting in the month of Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, there is no dispute that the assessee has availed input service credit on the services availed in April 2006. In the impugned order it is clearly held by the lower appellate authority that no export of service has taken place during April 2006, hence the assessee is not entitled to take the credit of input service availed in April 2006 : As per CENVAT Credit Rules, 2004 an assessee is entitled to take credit on input service at the time of availment of service not at the time of providing the services. In view of these findings, the observation of the lower authorities is totally irrelevant (as the assessee has not exported the services in the month of April 2006 the assessee is not entitled to claim credit on input services availed in A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dispute arising on outdoor catering service, as held by the Hon'ble High Court of Bombay in the case of Ultratech Cement (supra) the assessee is not entitled for input service credit for the charges recovered by them against the subsidised food from their employees. Accordingly, the credit availed by the assessee on the amount recovered by them from their employees against the canteen services is denied. Therefore, the appeal of the Revenue is partly allowed by way of remand to the original adjudicating authority to quantify the amount recovered by the assessee from their employees for providing subsidised food after giving reasonable opportunity of hearing to the assessee to produce the documents for quantification. 9. In the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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