TMI Blog2015 (6) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... y six lacs fifty eight thousand nine hundred ninety four only) is the amount of refund of untilised CENVAT Credit admissible to M/s Serco Global Services Private Limited for the quarters April 2008 to June 2008, October 2008 to December 2008 & January 2009 to March 2009. However, an amount of ₹ 68,27,559/- which has been wrongly added by them to their Cenvat credit account is ordered to be deducted so as to correctly reflect the CENVAT availed utilized and carried forward in subsequent returns. Adjudicating authority has come to a clear finding that for the quarters October 2008 to December 2008 and January 2009 to March 2009, ₹ 56,58,994/- is the amount of refund of unitilised Cenvat credit admissible to the appellant. As r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion form, it described the nature of services as Software Development . In an elaborate discussion about classification of the services exported, the primary adjudicating authority came to a finding that- (i) while maintenance or repair of computer software under Annual Maintenance Contract or otherwise, was taxable under Management, Maintenance or Repair service under Section 65 (105) (zzg) of the Finance Act, 2004. management , maintenance or repair of software other than computer software were correctly classifiable under Information Technology Software services under Section 65 (105)(zzzze) which became taxable with effect from 16.5.2008 and therefore, the Cenvat Credit availed before that date was not admissible and hence was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - although the primary adjudicating authority in para 16.5 of the adjudication order noted as under: However, even after such deduction, an amount of ₹ 11,68,565/- is still payable by the applicant for which separate proceedings may be initiated by the Assistant Commissioner (Division - Gurgaon) as the same cannot be done in the present refund proceedings. 4. The ld. D.R. stated that the adjudicating authority was correct in adjusting the amount of refund towards Cenvat credit amount wrongly added in the ST-3 returns. 5. We have considered the contentions of the appellant. In view of concession by the appellant that it was not pressing for refund of the credit taken prior to 16.5.2008, we are not dwelling upon the issue of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of service tax, interest and penalty and the matter is remanded to the adjudicating authority to decide the issue afresh after offering an opportunity of hearing to the appellant. The appeal is allowed by way of remand. Thus, the mistake in ST-3 return was a rectifiable mistake which was indeed rectified by filing revised ST-3 return and as has been held in the case of Ceolric Services (supra) the revised return should not have been discarded as non-est. Further, even if the Cenvat credit was considered to have been taken wrongly, disallowing the same requires quasi-judicial process involving issuance of show cause notice followed by a speaking order. In this case, it has obviously not been done. Indeed, we find that even after adjust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008 - September 2008 and filed the same on 13 July 2010 in the Gurgaon division. This revised return correctly mentioned that the appellant had a closing balance of ₹ 68,27,559/- as on September 2008. Thus the Commissioner (Appeal) has himself noted that not showing balance of cenvat credit in the ST-3 return was inadvertent error and the revised return submitted by the appellant correctly mentions the closing balance of Cenvat credit to be ₹ 68,27,559/- as on September 2008 and that the appellant was maintaining the Cenvat Credit register. 7. We find that the primary adjudicating authority in para 16.2 to 16.4 has noted as under: 16.2 October 2008- December 2008: (Amount in Rs.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 56,58,994/- (rupees fifty six lacs fifty eight thousand nine hundred ninety four only) is the amount of refund of untilised CENVAT Credit admissible to M/s Serco Global Services Private Limited for the quarters April 2008 to June 2008, October 2008 to December 2008 January 2009 to March 2009. However, an amount of ₹ 68,27,559/- which has been wrongly added by them to their Cenvat credit account is ordered to be deducted so as to correctly reflect the CENVAT availed utilized and carried forward in subsequent returns. (emphasis added) It is event from the above-quoted paras that the adjudicating authority has come to a clear finding that for the quarters October 2008 to December 2008 and January 2009 to March 2009, ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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