TMI Blog2016 (2) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... ding output services which have been exported. Since there is no provision for domestic services, the ratio of services that how much related to export and how much related to domestic does not arise. Moreover, all these services as per its' use explained in the appeal memo, we find that all the services are essential for providing the call center services. - appellant is entitled for refund except amounts of ₹ 3581/- and ₹ 2930/- subject to only verification of calculation of refund amount. Refund allowed - Decided substantially in favor of assessee. - Appeal No. ST/426 to 428/11 - Final Order Nos. A/85219-85221/2016-WZB/STB - Dated:- 7-1-2016 - P S Pruthi, Member (T) And Ramesh Nair, Member (J) For the Appellant : Ms Rinku Jasuja, Adv. for PDS legal For the Respondent : Shri R K Das, Dy. Commissioner (AR) ORDER Per Ramesh Nair These appeals are directed against Order-in-Appeal No. RBT/111/2011, OIA No. RBT/115/2011 dated 21/3/2011 and OIA No. RBT/135/2011 dated 28/3/2011 passed by the Commissioner (Appeals) Central Excise, Mumbai, wherein Ld. Commissioner rejected Cenvat credit and refund claim thereof for the period prior to registration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax, the issue was decided by the Karnataka High Court in the case of mPortal India wireless Solutions Pvt. Ltd. vs. CST Bangalore [2012 (27) STR 134 (Kar)] wherein Hon'ble High Court held that registration with the department is not pre-requisite for availing the Cenvat Credit. In view of this judgment refund claim on this ground could not have been denied. She further submits that substantial amount of refund was rejected on the ground that prior to 1/3/2006 the services of the appellant i.e. Call center Services were exempted. In this regard she submits that this is a case of refund of accumulated Cenvat credit and not in respect of service tax on output services therefore even though the output service was exempted, refund could not have been denied as the accumulation of Cenvat credit in respect of input services which were used in the output service is not under dispute. The issue whether the Cenvat credit should be allowed in respect of input services used in exempted services exported out of India has been decided in the following judgments; (a) Dell International Services India P. Ltd. Vs. CCE, Bangalore [2010 (17) STR 540 (Tri. Bang)]. (b) Zenta Pvt Ltd. Vs. CCE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e find that there is no provision in law that Cenvat credit can be allowed only after registration of the unit, cenvat credit is allowed in respect duty suffered on input/input services and the said payment is nothing to do with the registration of the recipient of the services therefore registration cannot be made criteria to reject the refund claim. This view has been re-enforced by this Tribunal in the following cases. M Portal India wireless Solutions Pvt Ltd 7. Insofar as requirement of registration with the department as a condition precedent for claiming cenvat credit is concerned, learned counsel appearing for both parties were unable to point out any provision in the cenvat credit rules which impose such restriction. In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law. Therefore, said finding recorded by the Tribunal as well as by the lower authorities cannot be sustained. Accordingly, it is set aside. Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or manufacturing excisable goods which can be done so only when he erects, installs and commissions the capital goods with the help of various agencies. In the case in hand, we find that there is no dispute that appellant has received the capital goods and the input services, utilized them for setting up the manufacturing facilities. To deny credit of the central excise duty paid and service tax paid, would be travesty of justice, more so when the assessee herein is discharging appropriate excisable duty on the finished goods cleared after taking the registration certificate. We also find that there is no dispute as to the fact that the Cenvat Credit on the items like capital goods and input services is not denied for any other reason and appellant assessee is eligible for availment of such credit. In our view, such an order which denies Cenvat Credit to the appellant on a very very technical ground is unsustainable and needs to be set aside. In view of the above judgments, it is clear that lower authority could not have denied the Cenvat credit and refund thereof to the appellant on the ground of registration. 6.1 Regarding the availment of Cenvat credit and refund thereof i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf as any service in relation to designing, developing or maintaining of computer software or computerized data processing or system networking or any other service primarily in relation to operation of computer systems. The last words primarily in relation to operation of computer systems make the intention abundantly clear. The words back office processing used in the clarification dated 28.02.2003 have to be read in conjunction with the other terms used therein viz. data processing, networking, computer facility management. Thus, any service of back office processing primarily in relation to operation of computer system will be covered as IT services and not taxable. Payroll processing, accounts management etc. even by using computer programs, cannot be termed as activities primarily in relation to computer systems. The use of computer in these services is secondary and the primary activity is that of business-related work. Thus, these services will be taxable as Business Auxiliary Services. This is exactly the position that has been clarified in the circular dated 20.06.2003. 12. In any case, the Commissioner (Appeals) in the orders 83 83A/2008 ST had already state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lief. In view of the above judgments it can be seen that the Cenvat credit/refund claim in respect of input services used even in exempted services which has been exported, cannot be denied. 6.2 As per Ld. Counsel, the appellant is not claiming the refund in respect of ₹ 3581/- which was held to be greater than the amount of service tax on the invoices, we upheld the rejection of refund claim in respect of said amount. 6.3 Regarding the denial of Cenvat credit/refund claim in respect of banking and other financial services only on the ground that credit was taken on bank statement, we find that there is special relaxation provided in the proviso to Rule 4A(i) of Service Tax Rules, 1994 which reproduced below: Provided that in case the provider of taxable service is a banking company or a financial institution including a non-banking financial company, or any other body corporate or any other person, providing service to any person an invoice, bill or, as the case may be, challan shall include any document, by whatever name called, whether or not serially numbered, and whether or not containing address of the person receiving taxable service but containing other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... KHA)/10-11 dated 10/12/2010 in the appellant's own case (April 2008 to September, 2008). Business Auxiliary Services, Cleaning Activity Services, Convention Services, Cable Services, Club or Association Services, Manpower Recruitment Services. (c) Refund order No. 2249/R(KHA)/10-11 dated 7/1/2011 in the appellant's own case (October 2007 to March, 2008). Management Maintenance or Repair Services, Real Estate Agent's Services, Manpower Recruitment Services, club and Association Services, Cleaning Activity Services. (d) Accenture Service Pvt Ltd. order No. A/767/15/STB dated 10 March 2015 (CESTAT-Mumbai)]. Event Management Services, Mandap Keeper Services, Club or Association Services, Cable operator Services, Membership Subscription Services. In view of the above, we do not find any logic that once in the appellant's own case the sanctioning authority has sanctioned the refund claim under the same set of facts, how in subsequent refund claim, refund was rejected. We are therefore of the considered view that refund on the above services are admissible except of ₹ 3581/- and ₹ 2930/- as discussed above. 6.6 As per our above observatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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