TMI Blog2015 (11) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... part two on account of reimbursement; however there is no dispute that both the amounts have been realized in convertible foreign exchange. The reimbursement cannot be treated in isolation but is very much in connection with the export of services. Therefore in my view refund of the service tax on reimbursement which has been realized by the appellant from Foreign Service recipient in convertible foreign is admissible. - Matter remanded back - Impugned order is aside - Decided in favour of assessee. - APPEAL NOs. ST/89857, 89858, 89860, 89861, 89862, 89863, 89864 & 89873/14 - Final Order Nos. A/2192-2199/2015-WZB/SMB - Dated:- 16-7-2015 - Mr. Ramesh Nair, Member (Judicial) For the Petitioner : Shri. Mihir Deshmukh, Advocate For the Respondent : Shri. A.B. Kulgod, Asstt. Commissioner (A.R.) ORDER Per : Ramesh Nair These eight appeals are directed against common Order-in- Appeal No. 668-675/PD/14 dtd. 26/6/2014 passed by the Commissioner of Central Excise Service Tax, (Appeals-IV), Mumbai-I, wherein Ld. Commissioner (Appeals) upholding the orders in original rejected the appeals of the appellant. The details of the appeals are as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010, October 2010-December 2010, January 2011- March 2011, April 2011-September 2011 and January 2012 to March 2012 respectively before the Asstt./Dy. Commissioner, Division IV/V, Service tax II, under Rule 5 of the Cenvat Credit Rules, 2004 read with notification No.5/2006-CE(NT) dated 14/3/2006 in respect of the accumulated Cenvat Credit on the ground that the output services provided under the category of information technology software services during the period as stated above under the export of services Rules, 2005 had been exported and that they were not in a position to utilize the Cenvat credit availed on the said input services. The adjudicating authority on the said refunds passed order in original No. ST.II/Div.IV/135-R/12-13 dated 29/9/2012 which was challenged by the appellant before the Bombay High Court in writ petition No. 10923 of 2012 the Honble High Court has set aside the order in original dated 29/9/2012 and directed the adjudicating authority to pass a fresh order. The adjudicating authority in view of the direction of the Honble High Court passed eight different orders in original wherein against the various refund claim of the appellant partly allowed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ific Technical consultancy services are covered within the definition of input services under Rule 2(l) (i) if they are used in providing any output service and also contended that there seems to be no dispute regarding admissibility of Cenvat credit on service tax paid on the said service. It is also recorded in the impugned order except for the fact that it was not considered as input service as there was no direct nexus with output service provided by the appellant and exporter. It is his submission that as per the findings of the Ld. Commissioner Services are qualified as input service but refund was rejected only on the ground that there is no nexus of these services with out put services. He submits that almost 100% services are exported out of country; therefore nexus need not to be established as all the services used are only for services which are exported. Therefore the contention of the Ld. Commissioner is not correct. He also submits that small portion of the services was provided domestically in respect of which the appellant have not filed any claim, therefore issue of nexus raised by the original authority as well as Ld. Commissioner (Appeals) is merely on the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot admissible for Cenvat credit and consequently the same is not qualified for refund. As regard the refund claim in respect of service tax on reimbursement, he submits that services for which reimbursement has been received, cannot be said to have been used for providing export services, therefore refund was rightly rejected. 5. I have carefully considered the submissions made by both the sides and perused the record. 6. I am not going through the actual quantification of the refund to be admissible or otherwise in respect of each claim, however I am giving my findings on merit. As regard the refund claim on services such as Professional Consultancy fees, Chartered Accountant fees, Telephone charges, rent charges, Internet communication services, Repairs Maintenance, Cleaning Housekeeping, Security, Manpower Recruitment Supply services, information technology, rent a cab, commercial Training Coaching Services, computer network services (Online information database access or retrieval services) Information Technology Software services, Telecommunication, scientific Technical consultancy service, I observed that Ld. Commissioner in his findings observed as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner for the simple reason that normally telephone or mobile is issued in the individual name but the fact is not under dispute that telephone bill bearing name of the appellant also. Most important part is that the bill is paid by the appellant and the same has been booked as expenditure by the appellant, therefore, it cannot be said that the service of telecommunication has been used for business activity of the appellant. Needless to say that business activity is export of software technology service to the foreign country, therefore in my considered view the telephone services is input service used for out put service exported, in particular, when the Revenue could not establish with any evidence that the telephone/mobile has been used by the employee for their personal use. As regard reimbursement of expenses, I observed that in the contract of the appellant with the Foreign Service receipent, following clause is referred: Any other costs which may be specifically agreed upon in writing between the parties to be excluded for the purpose of arriving at the operating cost for the purpose of this Agreement. The operating costs as incurred in INR will be charged to buye ..... X X X X Extracts X X X X X X X X Extracts X X X X
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