TMI Blog2015 (2) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... of service tax payable on taxable output service. In the present case, the services provided by the appellant and exported is not a taxable output service inasmuch as software development software service and software consultancy service become taxable only in the Budget 2008. Therefore, the cap of 20% prescribed under Rule 6(3)(c) have no application whatsoever. Therefore, there was no bar on the appellant in availing full credit in respect of IT software services during the material period. Object of EXIM Policy of the Government of India is to promote exports of goods and services and not export of taxes. Service Tax being a destination based consumption tax, in the case of exports there should not be any tax burden and the tax burden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rule 5 of the Cenvat Credit Rules, 2004. On scrutiny of the refund claims, some discrepancies were noticed and accordingly show-cause notices were issued to the appellant for rejection of such refund claims. Appellant contested the show-cause notices before the adjudicating authority. Adjudicating authority did not agree with the contention raised and rejected the refund claims on various grounds. Appellant preferred an appeal before the first appellate authority wherein they contested the order-in-original on the ground that the services are exported; unit though not registered under centralized registration but were registered under the STPI scheme and the appellant s refund claim has been wrongly rejected by invoking Rule 6(3)(c) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the judgement is in paragraphs 5 to 5.6 which we reproduce. 5. We have carefully considered the rival submissions. 5.1 From the records of the case it is seen that during the impugned period the appellant had exported the following goods/services: (i) Software Maintenance Service, classifiable under the category of Management, Maintenance or Repair Service ; (ii) Software Development Service; and (iii) Software Consultancy Service. 5.2 As regards the management, maintenance or repair of computer software service, the same is classifiable under the taxable service category of management, maintenance or repair service as defined in Section 65(64) of the Finance Act, 1994. As regards the development of software and softwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of output service towards payment of duty of excise on any final product cleared for home consumption or for export on payment of duty or service tax on output service, and where for any reason such adjustment is not possible, the manufacturer or the provider of output service shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by notification. 5.4 Accordingly, Notification No. 5/2006-C.E. (N.T.), dated 14-3-2006 has been issued. Rule 6 of Cenvat Credit Rules, 2004 deals with obligation of the manufacturer of dutiable and exempted goods and provider of taxable and exempted services. Under Rule 6(3)(c), the provider of output service shall utilis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , bar of limitation cannot be a ground to refuse Cenvat credit to the assessee. 7. Insofar as requirement of registration with the department as a condition precedent for claiming Cenvat credit is concerned, learned counsel appearing for both parties were unable to point out any provision in the Cenvat Credit Rules which impose such restriction. In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the three authorities committed as serious error in rejecting the claim for refund on the ground which is not existence in law. Therefore, said finding recorded by the Tribunal as well as by the lower authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
