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2015 (8) TMI 745 - CESTAT MUMBAI

2015 (8) TMI 745 - CESTAT MUMBAI - 2015 (39) S.T.R. 641 (Tri. - Mumbai) - Denial of refund claim - Export of service / software to sister units - Refund of unutilized CENVAT Credit - Adjudicating authority came to a conclusion that the export invoice under which the services are claimed to be exported is not in conformity with the provisions of Rule 4A of Cenvat Credit Rules, 2004 and hence it is not possible to ascertain the exact classification of the services which is said to be exported by t .....

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d not exported any services which falls within the meaning of Export of Service Rules, 2005. - appellant had registered with Hardware Technology Park and Software Technology Park of the Central Government which is an indicator that they are providing some services which are exported and do not fall under the exclusion clause of Export of Service Rules.

Subject invoices indicate number, date, project for which it has been issued, invoice addressed to the recipient of service, either pa .....

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t has received the payment in foreign exchange on the invoices raised. We find that the lower authorities have incorrectly appreciated the facts and held that the appellant is not eligible for the refund of the amount of unutilized credit. - Decided in favour of assessee. - Appeal No. ST/509/10 - Mum - Final Order No. A/1003/2015-WZB/STB - Dated:- 9-4-2015 - Mr. M.V. Ravindran, Member (Judicial) And Hon ble Mr. P.S. Pruthi, Member (Technical),JJ. For the Appellant : Shri Prasad Paranjape, Advoca .....

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export their services mostly parent or to their sister units situated abroad. For the month of July 2008, appellant filed refund a claim of an amount which was lying unutilized in their CENVAT Credit account, claiming it to be the services which were received by them for rendering output services viz. BAS and ITSS. Adjudicating authority after granting an opportunity of personal hearing to the appellant and considering their reply to the show-cause notice, came to a conclusion that the export in .....

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he provisions of Export of Service Rules, 2005, Cenvat Credit Rules, 2004 and the definition of BAS and ITSS, held that the appellant is not able to co-relate the services exported by them and hence the impugned order before him was held as correct. 3.1 Learned Counsel would take us through the case records and submit that the invoices which are raised by the appellant are on their own parent or sister concern situated outside the country. He would further take us through one sample invoice whic .....

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enclosed with the invoice and submit that all these employees had traveled abroad for completing the work which has been given to them by their parent/sister concern. It is his submission that revenue authorities have not disputed that the appellant had exported services and there is no dispute as to the fact that foreign exchange remittances are received against the bills which are raised. 3.2 He would then draw our attention to the definition of BAS and ITSS as also the provisions of Rule 4A o .....

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rities as the unit is falling under Hardware Technology Park and Software Technology Park which are predominantly created for export of the services. 3.4 He would also submit that it is bounden duty of the lower authorities to classify the product/services. If they have any doubt, they could have called for the documents and come to a conclusion. He would draw our attention to order-in-original No.AC/R-140/Div- V/DPS/09-10 dated 28.01.2010 which was in respect of the refund claim filed by them f .....

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nue is not in appeal against such an order. 4. Departmental Representative on the other hand, would support the impugned order on the ground that the appellant has failed to demonstrate that they had exported BAS and ITSS services in order to claim the refund of the amount of CENVAT Credit lying unutilized during the relevant period. 5. We have considered the submissions made at length by both sides and perused the records. 6. On perusal of the records we find that the issue is regarding refund .....

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nder the category of BAS and ITSS; that all the services which are rendered by the appellant are either to their parent/sister concern from whom they receive the order for rendering the services and foreign exchange remittances towards the bills raised by the appellant are received. On such factual matrix, it needs to be addressed whether the appellant is eligible for refund claim as filed by them. 6.1 The first appellate authority while rejecting the appeal filed by the appellant has done so by .....

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xport invoices were issued. Since there was no exports of output services as such, within the meaning of Export of Service Rules, 2005; the refund of unutilized CENVAT Credit was, therefore, not admissible under Rule 5 of Cenvat Credit Rules, 2004 read with Notification No. 5/2006-CE (N.T.) dated 14.03.2006 and the same was correctly denied by the adjudicating authority. 6.2 It can be seen from the above reproduced findings of the first appellate authority which are similar to the views expresse .....

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Service Rules, 2005 specifically indicates that the services in relation to taxable services should be specified in clause (105) of Section 65 of the Act and also provides for exclusion. The appellant herein had registered himself with the service tax authorities for provision of export of services under the category of BAS and ITSS. In our considered view, once an assessee has registered himself as provider of output services, it cannot be disputed by revenue that the appellant had not exported .....

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e subject and got registration from the department and rendered the said services and also received foreign exchange remittances in respect of the invoices raised by them. It was for the department to come to a correct classification of the services if they have had any doubt. In an extreme case, even if the services rendered by the appellant, assuming does not fall under the category of BAS and ITSS, revenue has not classified the said services as to one of the services which are falling under .....

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ent policy is an unacceptable position. 6.6 Fourthly, we called for invoices raised by the appellant and perused the disputed invoices. We find that the said invoices indicate number, date, project for which it has been issued, invoice addressed to the recipient of service, either parent/sister concern and indicates project code. The said invoice as has been issued and the annexures to the invoice indicates the project is in respect of a software developed and the purchase order number of the cl .....

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