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Ness Technologies (India) Private Limited Versus Commissioner of Service Tax DivisionV, Mumbai

2015 (11) TMI 53 - CESTAT MUMBAI

Refund - Input services - Nexus with export of services - Business Auxiliary Service, Business Support Service, Management consultant and information technology software service - Held that:- There is no dispute even by the Original authority as well as the Commissioner (Appeals) that all these services covered under the definition of input services therefore Cenvat Credit is admissible. However, the refund was rejected on the said services on the ground that appellant could not establish nexus .....

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parts one, value of the software and 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 .....

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cise & 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: Sr. No. Period of dispute Period of dispute Appeal against order-in-original Amount in dispute(INR) 1 ST/89857/14-MUM Apr-09 ST-II/Div. IV/214-R/2010-11 dated 31 Dec 2010 ₹ 71,726 2. ST/89858/14-MUM Jan-09 ST-II/Div. IV/255-R/2010-11 dated 21 January 2010 ₹ 2,45,757/- 3. ST/89873/14-MUM Feb- .....

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v. IV/15-R/2013-14 dated 26 April 2013 ₹ 5,35,152/- 2. The facts of the case is that the appellant M/s. Ness Technologies (India) Private Limited holding service tax registration No. AAACA9649LST001 for providing taxable output services under category of Business Auxiliary Service, Business Support Service, Management consultant and information technology software service and had been availing Cenvat Credit of the service tax paid on various input service used by them in providing output s .....

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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. Th .....

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us refund claim of the appellant partly allowed and partly disallowed as detailed in para 1. Aggrieved by the portion of the orders by which the refund was rejected the appellant filed appeals before the Commissioner (Appeals) upholding the orders in original and rejected the appeals of the appellants on the following grounds: (a) There is no direct nexus of input services with the output services provided by the appellant and exported. (b) It was also contended in the impugned order that certai .....

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of gross amount of taxable service. The matter was referred to the larger bench in the case of Bhagwati Traders. The part of the refund was rejected on the ground that appellant claimed refund on account of invoices not been submitted which is in respect of services which was received from out side India and the service tax paid on reverse charge basis. Charge of the Ld. Commissioner (Appeals) is that appellant have not satisfactorily proved their intention. The part of the refund was also reje .....

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l Consultancy fess, Chartered Accountant fees, Telephone charges, rent charges, Internet communication services, Repairs & Maintenance, Cleaning & Housekeeping, Security, manpower Recruitment & Supply serices, 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 servic .....

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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 .....

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r otherwise. Whereas in present case the payment has been realized on account of export of services from the service recipient in convertible foreign exchange, therefore refund of the same should be granted. He submits that there is specific clause in the contract with the Foreign Service recipient that the appellant shall be paid reimbursement of certain expenses incurred in the course of exporting the service. In view of this undisputed facts the export is not only of the services of informati .....

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of account, therefore recipient of services is company even though the name of the employee mentioned in the invoices. Telephone/mobile in relation to manufacture and business activity of the company, therefore the same is input services for providing out put service which has been exported hence the refund is clearly admissible. 4. Shri. A.B. Kulgod, Ld. Asstt. Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that Ld. Commissioner .....

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d by the employees for their personal use, hence the same is not 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 goi .....

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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: 17. I find that the appellants have been availing CENVAT credit of service tax paid on input services viz. Professional Consultancy fees, Chartered Accountant fees, Telephone charges, Rent charges, Internet Communication .....

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service under Rule 2(l)(i) (main definition), if they are used in providing any output service. It is worthwhile to note that, out of the input services as mentioned in the foregoing para, there seems to be no dispute regarding admissibility of CENVAT Credit of service tax paid on the said services as also recorded by the Respondent in the impugned orders except for the fact that it was not considered as input services , as there was allegedly no credit nexus with the output service provided .....

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no refund claim was filed, entire services have been undisputedly exported; no one to one co-relation is required to be proved. When entire services have been exported then it cannot be said that nexus of input services with the output services is not established and therefore the Ld. Commissioner (Appeals) has erred in rejecting the claim of the said services. As regard telephone services, Ld. Commissioner (Appeals) rejected the claim on the ground that it is for personal use of the employee an .....

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ant, 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 rei .....

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or of INR 48 (i.e. 1US$=INR 48) for the period January 10 to March 10. The seller will charge rechargeable expenses to the Buyer at he dollar rupee rate for the month. The buyer will charge the same to his customers. Seller may raise invoices on Buyer on the last working day of every calendar month or at such intervals as may be mutually agreed and the same is payable by the buyer within 90 days post receipt of the invoice. Seller shall be entitled to raise an invoice for the services rendered d .....

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