TMI Blog2015 (9) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... n the invoices which have been shown to co-relate with the specific services falling under Section 65(105) in the documents submitted by the appellant to us as well as to the Revenue authority the contention is not correct. Admissibility of Cenvat credit on the input services - Held that:- There are two parts to this objection; the first is whether Cenvat credit would be available to these units in respect of input services received by them. We find no provision in law which debars this. The second part of the argument is the taxability of service exported from the SEZ units. Here also there is nothing in the statute which says that the tax should not be paid on taxable service exported from the SEZ units. We reject this contention also. The rebate claim relates to the years 2008-2009 and 2009-2010. Already six years have passed. We have held that rebate is admissible merits. At the same time, this Tribunal cannot go into the verification of the quantum of refund. Refund allowed - matter remanded back for limited purpose of verification of the quantum of rebate to be sanctioned to the appellant - Decided in favor of assessee. - ST/185, 188 & 446/2012-Mum - Final Order Nos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Services Rules, 2005. The appellants claimed that they exported various services i.e. Information Technology Software Service, Business Support Service, Management Maintenance and Repair Service, Technical Testing and Analysis Services to M/s. Tata America International Corporation operating as M/s. TCS America. They submitted the following documents along with application for refund claims (ASTR-1) (a) Copies of the invoices raised to their clients - M/s. TCS America-along with softex forms as proof of Export for the period of Export. (b) Foreign Inward Remittance Certificate (FIRC) with details of Invoice No. and Invoice amount against which the remittances were received. (c) Details of Invoice on which export rebate is claimed along with details of money received against the same. (d) Cenvat availed details for the relevant period. (e) A statement (ST-3) for the same period giving all details. 2.1 The adjudicating authority rejected the rebate claim for the following reasons: (i) As per Rule 4A of Service Tax Rules, 1994 it is mandatory that every person providing taxable services shall issue an invoice and that invoice shall contain all detail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the adjudicating authority and confirmed the rejection of the rebate claim as under : The appellants are located in Software Technology Park of India. The services are exported through Software Technology Park of India. The SOFTEX form submitted by them reflect the name and address of the Country, the type of software exported and value of export. It does not reflect details of services exported. These SOFTEX forms are also not certified by the STPI authorities. In many cases incorrect certificates are attached to the SOFTEX form. A statement of invoices is appended with the SOFTEX form as Annexure which indicates the period. Project No., Invoice No/date, Invoice amount (in foreign, currency and INR). The FIRC submitted as proof of the amount received in India in convertible foreign exchange indicates the beneficiary, purpose of remittance as per Annexure which indicate the customer name, transaction No. and date, amount received in foreign currency and converted INR. There is no specific description of the services in any of the documents and therefore, it is not possible to ascertain the category of services against which the appellants have claimed rebate. Conseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be construed in the direct language in which it is framed and nothing exterior should be considered as long as they have given enough evidence to establish the export of services and payment of service tax as well as the receipt of foreign e;xchange as evidenced by the FIRC, for services exported. He relied on the Supreme Court judgment in the case of Commissioner of Central Excise, Jaipur v. Mewar Bartan Nirman Udyog - 2008 (231) E.L.T. 27 (S.C.). The ld. Counsel further argued that once they have followed the conditions of a notification and discharged the burden of establishing eligibility in terms of the notification, the onus shifts to the department to prove with some cogent evidence that they are not eligible for the rebate in terms of the notification. According to him, simply referring to Rule 4A which provides that invoices have to be issued while providing taxable services cannot be a basis for rejecting the rebate. Further, simply stating that there are missing elements in the invoice whereas actually every aspect can easily be explained from their very records already submitted to the adjudicating authority and appellate authority, cannot debar them under the Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of services tax took place from these units. According to him, as held by the adjudicating authority, service tax is not leviable on the provisions of services into the SEZ units and therefore the question of taking Cenvat credit by such units and thereafter utilizing the Cenvat credit to pay the service tax on the exported services does not arise. The ld. AR also contended that Notification No. 11/2005 is not an exemption notification; it is only a notification to provide for rebate subject to following of certain conditions and procedure. 6. We have considered the rival contentions. The basis for holding (by Revenue) that the rebate is not admissible centers around the following five points : (a) The SOFTEX Forms do not reflect the details of service exported. (b) The forms are not certified by STPI Authorities and in many cases, incorrect certificates are attached to the SOFTEX Forms. (c) There is no specific description of the services in the documents matching the description of services in Section 65(105) and the category of taxable services cannot be ascertained and various documents viz invoices, softex forms, FIRCs cannot be correlated. (d) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claration that such taxable service, rebate of service tax and cess paid on such service is claimed, has been exported, in terms of rule 3 of the said rules, along with the documents evidencing the export of such taxable service; (iii) The jurisdictional Assistant Commissioner of Central Excise of Deputy Commissioner of Central Excise, as the case may be, if satisfied that the claim is in order, shall sanction the rebate either in whole or in part. 6.2 We find from the above that the essential conditions of Notification No. 11/2005 are that the taxable service should be exported and the payment for export should be received in India in convertible Foreign Exchange and the service tax should have been paid on the taxable service exported. We find from the documents produced by the appellant that services have been exported and foreign remittances received and also that the service tax and cess has been paid for rebate which is claimed. Procedure laid down under para 3 of Notification requires the rebate application to be accompanied by documentary evidence in respect of the above and a declaration that the taxable service has been exported. We find that the main contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SOFTEX No. FIRC No. i. USFI200930880 1-12-2008 Fees for Services Rendered as per Annexure Attached 66006.26 Pg. 357 Sr. 1 Business Support Service Vikhroli /Q3 (08-09)/017 230323 ii. USFI200924259 28-10-2008 Fees for Services Rendered as per Annexure Attached (Automatic Event for 209056) 8311.70 Pg. 354 Sr. 595 Business Support Services Thane/Q3 (08-09)/048 149160 iii. USFI200931539 11-12-2008 HIET Support Dec. 2008 8892.72 Pg. 354 Sr. 601 Information technology software services Thane/Q3 (08-09)/048 230323 iv. USFI200931296 2-12-2008 Matrix One/Engineering Central ADK, TCI, MQL/ Thick Client RMI Scheme 20158.91 Pg. 356 Sr. 670 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to the appellants on merits. 8. We may now take up other contentions of the adjudicating authority and appellate authority. The first issue is that the details of services exported are not mentioned in the Softex Forms. We hold that since the service mentioned in the Softex Forms is the same as that mentioned in the invoices which have been shown to co-relate with the specific services falling under Section 65(105) in the documents submitted by the appellant to us as well as to the Revenue authority the contention is not correct. 8.1 The second point is that TCS America was awarded contracts by its clients in turn it and outsourced services to TCS India. The adjudicating authority observed that the fact of outsourcing is not shown in the Master Agreement between TCS America and their clients. We find that this is not a requirement of Notification No. 11/2005 and the Master Service Agreement need not show the names of the sub-contractors, that is TCS India, to whom work of providing services has been outsourced by TCS (America). The issue at hand is only the service transaction between TCS America and TCS India. Therefore this contention is rejected by us. 8.2 The third ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that, in exactly similar circumstances on a similar set of facts, the Assistant Commissioner (AC) in Delhi has granted the rebate claim to the appellant and as stated by them, the Order of the Assistant Commissioner has been accepted by the department. It is unfortunate that two units of the appellant in different jurisdictions received contradictory orders in the same set of facts. Therefore, we direct that a copy of this Order may be forwarded to Chairman CBEC by the Registry to bring this fact to his notice. 10. We also observed that the rebate claim relates to the years 2008-2009 and 2009-2010. Already six years have passed. We have held that rebate is admissible merits. At the same time, this Tribunal cannot go into the verification of the quantum of refund. 11. Therefore, we remand the case back to the adjudicating authority in LTU for the limited purpose of verification of the quantum of rebate to be sanctioned to the appellant. Interest will also be paid in accordance with law. In view of the fact that six years have passed and also the fact that Assistant Commissioner Delhi has sanctioned the rebate claim, it would be in the interest of justice to decide the case ear ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
