TMI Blog2013 (3) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... re twelve appeals, five pertaining to Mumbai Commissionerate, four pertaining to Nasik Commissionerate and three pertaining to Pune Commissionerate. The appellant is the same in all the cases and the issues involved are also more or less the same and hence we take up all these appeals for consideration together. 2. The appellant is a service provider under the category of "Business Auxiliary Services" and have been exporting services to their clients abroad. The appellant claimed refund of input service tax credit which they could not utilize under Rule 5 of the CENVAT Credit Rules, 2004. These refund claims were partly sanctioned and partly rejected. It is against the part rejection of the refund claims the appellant is before us. 3. As regards the refund claims filed in Mumbai Commissionerate, the period involved is April 2006 to March 2008 and there are five refund claims and the amount of refund rejected in respect of these five claims works out to 46,53,056/-. The refund claims have been rejected on the ground that 'input service' on which credit have been taken are not in fact input services for rendering of the output services and there are also errors in the computation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CENVAT Credit Rules, 2004. 4.2 In respect of the refund claim pertaining to Pune Commissionerate, the Advocate submits that even though the Call Centre services were exempt prior to 01.03.2006, inasmuch as these services were exported, they are rightly entitled for the refund of the input service credit taken thereon. He also relies on the judgment of this Tribunal, in their own case, in Order No. A/49 to 51/08/WZB/CSTB/C-I dated 18.01.2008 wherein this Tribunal held that as per the substituted Rule 5 of the CENVAT Credit Rules, 2004, there is no condition that it was applicable only for exports made after 14.03.2006 and if the claim has been filed on or after 14.3.2006 and the claim satisfies the requirement of Rule 5 and the Notification issued thereunder, then there is no bar in availing service tax credit and claiming refund thereof. He further relies on the judgment of Hon'ble Bombay High Court in the case of Repro India Ltd. v. Union of India 2009 (235) ELT 614 (Bom.) wherein it has been held that in respect of export transaction even if the same is exempted refund of service tax paid on input service could be rightly availed. 4.3 With respect to the service tax refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undertaken by them and the export proceeds have been received in convertible foreign exchange by the appellant and their claims have been filed within the time period stipulated in the Notification issued under Rule 5 of the CENVAT Credit Rules, 2004. 6.3 As regards the three refund claims pertaining to the Pune Commissionerate, we find the claim has been rejected only on the ground that for the period prior to 2006, the output services rendered by the appellant namely, 'Call Centre Services' were exempted prior to 01.03.2006 and therefore they are not entitled for service tax paid on input services. We find that in the appellant's own case, this Tribunal has considered the matter vide order dated 18.01.2008 cited supra and in para 9 of the said order this Tribunal held as follows:- "9. We are however in agreement with the last plea taken by the appellants that the refund claim filed by them on 26.4.2006 onwards will be governed by the rules as it stood on those dates. The substituted Rule 5, nowhere suggests or says that it will apply for exports made after 14.3.2006. Hence any claim filed on or after 14.3.2006 which satisfies other requirements of the rules and Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is and contrary to the decision of the Hon'ble High Court in the case of Repro India Ltd. (supra). Accordingly, this order is also set aside and the case is remanded back to the original adjudicating authority to consider the refund claims in the light of the decision in Repro India Ltd. (supra) and the appellant's own case in the order dated 18.01.2008. It is for the appellant to satisfy that the 'input services' on which credit has been availed pertains to services which have been exported in accordance with the provisions of Rule 5 of CENVAT Credit Rules, 2004, and within the time-limit stipulated for filing the refund claim. 6.5 As regards the four refund claims pertaining to Nasik Commissionerate, there are two issues. As regards the argument of the department that the services are not directly exported from the premises of the appellant but were routed through telecom service provider, this ground is totally unsustainable. When an exporter undertakes exports electronically, the data has to be delivered to the telecom authorities for transmission of the same abroad. That does not mean that export has not been taken place. So long as the data has been transmitted abroad and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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