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2015 (11) TMI 101 - CESTAT MUMBAI

2015 (11) TMI 101 - CESTAT MUMBAI - 2016 (42) S.T.R. 196 (Tri. - Mumbai) - Refund claim - Refund of unutilized CENVAT Credit - Rule 5 of CENVAT Credit Rules, 2004 read with Notification No. 5/2006 CE (N.T.) - Held that:- Input services in the nature of works contract service, civil construction service, interior decoration service, architect service availed by the appellant in repair, renovation, modernisation of its office are eligible input service. It is the discretion of the Management of th .....

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oncerned, it has been explained that the same is incurred in organising conferences, training sessions and meetings which are essential for the smooth running and business promotion. Accordingly I uphold the same as eligible input service. So far the cable operator service is concerned, the same have been incurred for availing/seeing business channels on television sets, installed in the office premises for the staff to remain updated with the business news & developments which is essential for .....

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tion also for credit already utilised during the quarter. - Decided in favour of assessee. - APPEAL NO. ST/89353 to 89355 & 89347/2014 - Final Order Nos. A/1890-1893/2015-WZB/SMB - Dated:- 1-6-2015 - Shri Anil Choudhary, Member (Judicial) For the Petitioner : Shri Tarun Jain, Advocate For the Respondent : Shri B.S. Meena, Additional Commr. (A.R.) ORDER Per: Anil Choudhary: The appellant-assessee is in appeal against common Order-in-appeal upholding the rejection of refund in part, vide different .....

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3 6,92,264 49,857 (refund allowed on this count) 3. Interior Decorator Service 1,12,673 92,978 - 2,46,523 4. Storage & Warehousing Service 15,794 2,589 - 4,587 5. Event Management Service 8,425 - 6. Works Contract Service 16,57,640 15,65,539 98,370 35,75,201 7. Cable Operator Service 5,992 - 510 Total (Rs. 85,15,270/-) 19,04,974 24,50,259 2,91,757 38,68,280 2. brief facts are that the appellant M/s J.P. Morgan Services (I) Pvt. Ltd. provide banking and other financial services, Business Auxi .....

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llowed in part and partly rejected. The rejection is mainly on 2 grounds, namely some services like architect service, civil construction service, interior decorator service, storage and warehousing service, event management service, works contact service and cable operator service was held to be not an eligible input services for providing output services and accordingly the refund claim on CENVAT credit availed in respect of these services was denied. Secondly while applying the formula as giv .....

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ral submissions of the appellants made in their appeal memorandums and in the course of personal hearing held on 22.05.2014, and the adjudicating authority s findings recorded in the impugned orders have been duly considered by me. The short issue to be decided in the appeal is whether the respondent has rightly rejected the refund claim or otherwise. 6. On going through the documents placed before me, I find that the appellant has availed CENVAT credit on services such as Architects Services, C .....

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lant also failed to substantiate their claim with documentary evidences that the said input services have actually been used in or in relation of provision of their output services. I find that other than relying on judicial pronouncements, which are not relevant in the instant case, the appellant has failed to conclusively prove their point. Therefore, I find that the decisions of the adjudicating authority is just and legal. 7. Thus, the impugned Order-in-Original passed by the respondent is c .....

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nd that the services on which the refund of CENVAT credit is denied, is misconceived as the same have been utilised in providing the output services by the appellant. So far the works contract service is concerned the same have been used with respect to repairs of the premises. It is further urged that modernization, renovation and repairs of office premises is specifically included in the definition of input services under Rule 2(l) of CENVAT Credit Rules, 2004, Similarly civil construction ser .....

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ss like renting of premises, the right to use software, maintaining and repair of equipment, telecommunication facilities etc. are certainly eligible. Services like rent-a-cab offered to employees of the office would also be an eligible input services as these offices run on 24 x 7 basis and transportation and provision of food for the employees are necessary perquisites which the employer has to provide to ensure that employees can work efficiently. Accordingly service tax paid on Manpower Recr .....

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he supplier of input services which is duly annexed to the application for refund. It had been found that the appellant is fulfilling the conditions so far as the availment of CENVAT credit is concerned. The appellant have also submitted the declaration to this effect. With such observations the adjudicating authority further mentioned that on examining the credit element (input service wise), it is found that, except in the cases of architect service, civil construction, interior decorator, sto .....

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final order dated 25.11.2014, 2015 (38) STR 410, wherein the adjudicating authority sanctioned part of the refund claim and rejected a part of it for the reason that some 21 services received were not used in providing output service and hence, not classifiable as input service under Rule 2(l) of the CENVAT Credit Rules, 2004 and the other reason was that CENVAT credit was availed on the input services against input invoice which pertains to the period prior to registration. The Division Bench .....

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me to any sort of conclusion that the input services in question are not used in providing the output services exported by the appellant herein. Further on examining the definition of input services the Tribunal held that input services used for modernisation, renovation, repair of the office premises are also covered. The Tribunal did not agree with the learned A.R. that advertising, which is an input service, for the manpower recruitment service, will not be eligible. It was further held that .....

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eriod, in respect of any credit used during the quarter or any amount as wrongly taken credit of. It is further urged that once the taking of credit is not disputed, there can be no disallowance of the same while granting refund. The learned Counsel relies on the ruling of this Tribunal in the case of Commissioner of Service Tax Vs. Convergys India Pvt. Ltd. 2009 (16) STR 198 wherein the Division Bench of this Tribunal have held that there cannot be two different yardsticks, one for permitting c .....

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R relies on the impugned order. Reliance has further been placed on the ruling of the Hon ble Karnataka High Court in the case of Shell India Markets Private Ltd. Vs. Commissioner of Central Excise 2012 (278) ELT 50, wherein the facts were that the assessee was 100% EOU engaged in providing consulting engineer service and had filed refund claim under Notification No. 5/2006. It was held that the assessee had not produced certain documents and accordingly pursuant to show cause, it was explained .....

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was correct in passing the impugned order which was beyond the scope of the show-cause notice as the show-cause notice did not dispute the power of the Central Government to grant refund of CENVAT credit and (ii) whether the Tribunal was the right in holding that the Central Government had no power to grant refund of CENVAT credit, when the same was not an issue before it and (iii) whether the Tribunal was right in acting beyond jurisdiction in interpreting the provisions of the statute and hold .....

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n, showing how input services is utilised in the output service, the minimum that was required of the Adjudicating authority, as well as the appellate authority is to refer to what they have said and then say what they feel about it. It was further held that there is no examination by them and accordingly the order of remand was upheld by the High Court. 8. Having considered the rival contentions, I find that the first issue as regards eligibility of certain services, as the inputs is covered by .....

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and the location, it wants to work for providing the output service. I find that there is no dispute as regards the amount of service availed. Further the service of storage and warehousing, have been incurred admittedly for packing & moving gadgets or things from one office premises to another. As the appellant operated from more than one premises, the said service is admittedly an eligible input service. So far event management services are concerned, it has been explained that the same is .....

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