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TMI Blog2013 (7) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax under the category of management Consultant, Maintenance or Repair Services, Auxiliary Service, Online Information and Data Services, Business Support Service, Bank and Financial Services, Commercial Coaching and Training Services, Renting of Immovable Property Service, etc. During the period April, 2007 to March, 2008, they filed four refund claims totally amounting to Rs. 2,14,45,060/- in terms of Rule 5 CENVAT Credit Rules, 2004 on the ground that in view of the export of services made by them they are unable to utilize the accumulated CENVAT credit and, therefore, the unutilized CENVAT should be allowed to the refunded in terms of the above said rule. The department was of the view that the services exported by the appellant w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) of the CENVAT Credit Rules and not on account of export and, therefore, refund under Rule 5 of the CENVAT Credit Rules does not arise. Accordingly, he dismissed the appeal. Hence the appellant is before us. 3. The learned counsel for the appellant makes the following submissions: 3.1 The appellant is a 100% EOU and during the impugned period they exported 'software maintenance service', software development service' and 'software consultancy service' and for these services exported they received consideration in convertible foreign exchange. They had availed CENVAT credit of service tax paid on various input services which were used for the export of software services. In view of this, they had accumulated CENVAT credit in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and export of software during 2006-07 has held that benefit of refund of service tax paid would be available under Rule 5 in spite of IT software being a non-taxable item. He also relied on the decision of the hon'ble High Court of Bombay in the case of Repro India Ltd. vs. Union of India 2009 (235) ELT 614 (Bom.) wherein, in the context of exported goods, the hon'ble High Court held that CENVAT credit would be available on input or input services used in the manufacture and export of exempted goods. 3.3 In the light of these submissions he prays for allowing the appeal. 4. The learned Additional Commissioner (AR) appearing for the Revenue reiterates the findings of the lower authorities and prays for sustaining the order. 5. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 2(p) of the CENVAT Credit Rules - "output service' means any taxable service provided by the provider of a taxable service, to a customer, client, subscriber, policy holder or any other person, as the case may be, and the expressions 'provider' and 'provided' shall be construed accordingly." Under Rule 5 of the CENVAT Credit Rules: "where any input or input service is used in the manufacture of final product which is cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate product cleared for export, or used in providing output service which is exported, the CENVAT credit in respect of the input or input service so used shall be allowed to be utilis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;ble High Court of Karnataka in mPortal India Wireless Solutions P. Ltd. (supra) case, in a similar situation, held as follows: "6. The assessee is a 100% export oriented unit. The export of software at the relevant point of time was not a taxable service. However, the assessee had paid input tax on various services. According to the assessee a sum of Rs. 4,36,985/- is accumulated cenvat credit. The Tribunal has categorically held that even though the 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 the cenvat credit. Similarly insofar as refund of cenvat credit is concerned, the limitation under Section 11B does not apply for ref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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