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2015 (3) TMI 1114 - CESTAT MUMBAI

2015 (3) TMI 1114 - CESTAT MUMBAI - 2015 (40) S.T.R. 719 (Tri. - Mumbai) - Cenvat Credit - SEZ unit - Eligible input services - The lower authorities are of the view that the said services on which CENVAT Credit was availed is not eligible to the appellant as the said services were not used for export of services. - Held that:- As regard availment of CENVAT Credit of service tax paid on "Health Club and Fitness Centre", vide our final order dated 20.06.2013, we held that these services are not e .....

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ellant has made out a case for him as to eligibility of CENVAT Credit availed on various services as indicated here-in above except for "Health Club and Fitness Services", and hold that they, have correctly availed CENVAT Credit and the appeal to that extent needs to be allowed and we do so. - Decided partly in favor of assessee. - Appeal No. ST/90127/14 - Mum - Final Order No. A/767/2015-WZB/STB - Dated:- 10-3-2015 - M. V. Ravindran, Member (J) And P. R. Chandrasekharan, Member (T) For the Appe .....

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ocations across India and has got STP Units, SEZ Units and DTA units. The appellant availed CENVAT Credit of input services during the period April 2006 to September 2011. The lower authorities are of the view that the said services on which CENVAT Credit was availed is not eligible to the appellant as the said services were not used for export of services. Coming to such conclusion, show-cause notices were issued to the appellant for the period April 2006 to September 2010, two show-cause notic .....

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availed by the appellant. All the show-cause notices for the period April 2006 to September 2012 are adjudicated by the impugned order and demands are confirmed with interest and penalties. 3. Learned Counsel appearing on behalf of the appellant would submit that the demands are contested by the appellant on two grounds. Firstly on calculation errors and secondly legal submission on eligibility of disputed input service. 3.1 Learned Counsel would submit that CENVAT Credit availed on the followi .....

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17 Insurance Auxiliary Services 18 Cable Operator 19 Survey & Map Making 20 Packaging Services 21 Tour Operator 22 Internet Café Services 23 Membership & Subscription 24 Annual Subscription 25 Guest House Services 26 Digital Printing And Installation 3.2 He would, as regards the dispute on calculation errors, draw our attention to the chart filed with the written submission which is reproduced:- Sr. NO. Particulars Amount (Rs.) 1 Total Demand confirmed in the impugned OIO 25,18,1 .....

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95 (Insurance + Insurance Auxiliary + Outdoor Catering + Club) 18,08,85,339 Services constituting major demand 1 Transport of passengers by Air Services 9,69,71,404 2 Event management 4,89,50,557 3 Mandap Keeper 1,90,23,460 4 Accommodation 86,16,841 5 Insurance 29,91,652 6 Scientific & Technical Consultancy 28,96,144 7 Other Services 14,35,382 Total 18,08,85,339 After referring the above reproduced chart, he would submit that the impugned order has traveled beyond the remand orders in respec .....

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ion of the demands approximately ₹ 1.64 crores is also incorrect as the said amount has been wrongly taken by the adjudicating authority. He would submit that the demand actually is for approximately ₹ 2.23 lakhs while the adjudicating authority has confirmed the demand which is in respect of the CENVAT Credit availed on various other allowable eligible services. 3.3 As regards the submission on the eligibility to avail CENVAT Credit on various input services it is his submission tha .....

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rvice is co-relatable with the tour undertaken by the employees for attending business meeting with the clients. 3.4 As regards Event Management and Mandap Keeper Services he would draw our attention to various invoices of the service provider which indicates that the services were used for business meetings organized by the appellant in various hotels who discharge service tax under the category of Event Management and Mandap Keeper. 3.5 As regards CENVAT Credit paid on Accommodation /Guest Hou .....

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ients all over the world. Hence, the services are in relation to the business activity of the appellant. It is his submission that as regards the CENVAT Credit of service tax paid on transport of passengers by air service subsequently, the Asst. Commissioner of Service Tax has sanctioned refund of the amount claimed by them has been utilized for export of services, and to the best of his knowledge no appeal has been filed by the Revenue. 4. Learned A.R. after taking us through various documents .....

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n of the term "input service" now does not have the phrase "activity relating to business, such as" and hence the services which are not specifically mentioned in the inclusive portion of the definition should be held as inadmissible to CENVAT Credit. He would submit that the appellant has not been able to justify the eligibility to avail CENVAT Credit of the service tax paid on various input services. It is his submission that it is for the appellant-assessee to justify the .....

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indicated in para 3.1. It is also undisputed that the documents on which CENVAT Credit availed are correct and not challenged by the Revenue. 6.1 In the above factual matrix, the findings of the adjudicating authority for denying CENVAT Credit on various input services as indicated here-in above seems to be that the appellant had not substantiated their eligibility to avail CENVAT Credit, and there has to be some nexus with the output service provided by them with reasonable evidences, that the .....

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t all the services have nexus with the business activity of the appellant, therefore, credit cannot be denied in sweeping way as has been done by the adjudicating authority. We has also clearly directed the adjudicating authority to examine the eligibility to avail CENVAT Credit on various services and its nexus with the output service, rendered taking into account the documentary evidences available on record. Despite such clear direction from the bench, the adjudicating authority in the impugn .....

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activity undertaken by them. 7. We record our finding individually on various services. 7.1 As regards the service tax paid on transport of passengers by airlines, we find that the said service tax has been paid by the service providers for the tickets which were issued to the appellant, on a specific request made by the appellant to such service providers. A specimen example of the entire transaction was considered by us, wherein it is seen that a particular employee before he undertakes any t .....

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that the request specifically indicates that the employees is undertaking such tour for official business of the appellant. On the face of such uncontroverted documentary evidence, we find that the service tax paid by various service providers under the category of transport of passenger by air lines, credit cannot be denied. 7.2 As regards the CENVAT Credit of the service tax paid on Event Management/Mandap Keeper services, on perusal of random examples which has been shown to us and which was .....

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tivity of the appellant. We find that the appellant has justified the CENVAT Credit availed on the service tax paid by the service provider on these servies. 7.3 Mere perusal of various services as indicated here-in above except for the "Health Club and Fitness Centre Services", the availment of CENVAT Credit by the appellant on various input services are in respect of the services which were received by the appellant in pursuance of their business activity i.e. providing output servic .....

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availing CENVAT Credit. Accordingly, the demands confirmed by the lower authorities on this services are liable to be upheld along with interest. 7.5 We now address to the calculation errors which have been pointed out to us by the learned Counsel. We find that the adjudicating authority in the earlier orders-in-original for the period April 2006 to September 2010 have allowed CENVAT Credit of Service tax paid on Insurance Service, Insurance Auxiliary Services, outdoor catering services and Club .....

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