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2016 (3) TMI 203 - CESTAT MUMBAI

2016 (3) TMI 203 - CESTAT MUMBAI - 2016 (43) S.T.R. 424 (Tri. - Mumbai) - Refund of Cenvat credit under Rule 5 of Cenvat Credit Rules 2004 read with notification No. 5/2006-CX(NT) - Inclusion of services in the definition of input services - Appellant is BPO Outfit providing Health Club and Fitness Center, Transport Goods by Road and Electricity Expenses services to its client but commissioner disallowed the Cenvat Credit in respect these services on the ground of not falling under the definitio .....

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lth and fitness services availed by the company for their employee is a necessity for providing the better quality of output service and included in the definition of input services. - The transportation was used for the various activities of the appellant such as transportation of equipment like computers etc. and there is no evidence available as per show cause notice that transport service was used for transporting the household goods of employees. Therefore, these services are input serv .....

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e definition of input services. As all the three services are input services, the Cenvat credit is allowed and are entitled for the refund of Service tax. - Decided in favour of appellant - Appeal No. ST/88474/2014 - A/85791/16/SMB - Dated:- 9-2-2016 - Ramesh Nair, Member (J) For the Appellant : Shri Keval Shah, C.A. For the Respondent : Shri Sanjeev Nair, Examiner (A.R.) ORDER This appeal is directed against Order-in-Original No. 33/ST/RN/CMR/MII/13-14 dated 28.03.2014 passed by the Commissio .....

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der. On adjudication, the Commissioner disallowed the Cenvat Credit in respect of services namely Health Club and Fitness Center, Transport Goods by Road and Electricity Expenses on the ground that these services are not falling under the definition of input service and the same has no nexus with the export of service. The appellant aggrieved by the impugned order of Commissioner, filed this appeal for an amount of ₹ 3,75,513/-. 3. Shri Keval Shah Learned Chartered Accountant appearing on .....

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een issued. In this regard, he placed reliance on the following judgments: (i) CCE vs Siddharth Tubes Limited 2004 (170) ELT 331 (Del. Trib) (ii) Radhasoami Satsang Vs. CIT 1992 (193) ITR 321 (S.C.) He submits that the appellant is BPO Outfit providing business support services for various clients. For providing these services, the services in question is used only for providing the said output services. He refers to the CBEC Circular No. 1201/01/2010-ST dt. 19.01.2010 according to which in case .....

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tation is used for household goods of the employees which is baseless, as no evidence to this allegation was adduced. As regard electricity expenses, he submits that these expenses is towards the services provided by the landlord for common area maintenance which includes repairs to facilities, maintenance of the premises, cleaning services, electricity and other related services. These expenses have been accounted for under the heads like repairs and maintenance, electricity expenses in the boo .....

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2009 (15) STR 657 (Bom. HC) (ii) Commissioner of Central Excise Nagpur vs. Ultratech Cement Ltd. 2010 (20) STR 577 (Bom) (iii) Tata Steel Limited vs. Commissioner of Central Excise, Mumbai 2011 (21) STR 444 (Tri-Mumbai) (iv) L'oreal India Pvt. Ltd. vs. Commissioner of Central Excise, Pune 2011 (22) STR 89 (Tri-Mumbai) (v) Commissioner of Central Excise, Rajkot vs. Rolex Rings Pt. Ltd. 2008(230) ELT 569 (Tri-Ahmedabad). He submits that certain services were carved out from the definition of i .....

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therefore, penalty should not have been imposed in terms of Section 80 of the Finance Act, 1994. 4. On the other hand Shri Sanjeev Nair, Learned Examiner (A.R.) appearing on behalf of the Revenue reiterates the finding of the impugned order. He submits that the services in question have no nexus with the export services. Health and Fitness Services and Transport of Goods by Road were used for the individual employees in their personal use therefore the same was not used for providing output ser .....

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dings and has been examined for the first time only in the present proceedings. He further submits that the transport of goods service was consumed personally by the employees. Electricity expenses is an input service for landlord and not for the tenant i.e. appellant therefore it is not admissible input service. 5. I have carefully considered the submissions made by both the sides. I find that to decide whether service is an input service or otherwise. It cannot be decided only by the nomenclat .....

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BPO companies the health and fitness of the employees is very essential factor in order to run the function of a BPO company. Therefore, health and fitness services availed by the company for their employee is a necessity for providing the better quality of output service. It is to be kept in the mind that business organization is not meant for an entertainment of the employees but ultimate objective is to achieve optimum performance by the employee. For that purpose health and fitness of the em .....

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