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2016 (4) TMI 67 - CESTAT HYDERABAD

2016 (4) TMI 67 - CESTAT HYDERABAD - TMI - Rejection of refund claim - Unutilized CENVAT credit filed under Rule 5 of CCR, 2004 read with Notification No.5/2006 CE(NT) dt. 14/03/2008 - Business Auxiliary Service and Information Technology Software Services exported out of India - Refund claim rejected on the ground that services exported are not taxable services, time barred, no one-to-one correlation between the inward and remittances (FICR) and export invoices and no nexus between the input se .....

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g the impugned period, was classifiable as an exempted service, the benefit of refund under Rule 5 of CCR cannot be denied.

If the period of one year is computed from the date of receipt of the FICR, the refund claims would be within the time limit followed by the judgment of Jurisdictional High court in the case of CC.CE&ST, Hyderabad-IV Vs. Hyundai Motor India Engg. (P) Ltd. [2015 (3) TMI 1049 - ANDHRA PRADESH HIGH COURT] and in the case of Market Tools Research (P) Ltd. Therefore, .....

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the definition included the words 'activities relating to business'. So, the services if necessary for business of the appellant would qualify as input services. therefore, the refund cannot be denied for the reason that input services do not have nexus with the output services. - Decided in favour of appellant with consequential relief - Appeal Nos. ST/2168, 2169/2012 - Dated:- 2-2-2016 - Sulekha Beevi, CS Member (J) For the Appellants : Shri Abhishek Rastogi & Ms Rashmi Deshpande, Consulta .....

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pellants filed applications for refund of CENVAT credit under Rule 5 of CCR read with Notification No.5/2006 CE(NT) dt. 14/03/2008 for the month of July 2010 to October 2010 and November 2010 to December 2010 for refund of the accumulated credit of Service Tax paid on various input services. A show-cause notice was served upon the appellants proposing to deny the refund claims. After due process of law, the original authority rejected the refund claims mainly on four grounds. Firstly that the se .....

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ry of ITSS which is taxable w.e.f. 16/05/2008, remanded the matter to the adjudicating authority to examine the limited issue of taxability. Being aggrieved by this order, the appellants have preferred the present appeals. 4. On behalf of the appellants, the (earned consultant Shri Abhishek Rastogi contended that the Commissioner(Appeals) has erred in remanding the matter to the adjudicating authority. That after the amendment brought forth in sub-clause (3) of Section 35A, the power of Commissi .....

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providing support services to various affiliates of parent entity, carrying out data processing activities. He argued that even if the services are not taxable, the refund should have been allowed. He drew support from the judgments laid in mPortal India Wireless Solutions Pvt. Ltd., Bangalore Vs. CST, Bangalore - 2011-TIOL-928-HC-KAR-ST and in KPIT Cummins Infosystems Ltd. Vs. CCE, Pune-I - 2013-TIOL-931-CESTAT-MUM. He submitted that the authorities below have erred in holding that the refund .....

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11B. To fortify his arguments, he relied upon the judgments laid in Final Order No.26941/2013 dt. 08/11/2013 in the appellant's own case and in the case of Bechtel India Pvt. Ltd. Vs. CCE, Delhi [2014(34) STR 437 (Tri. Del.)]. As regards the issue whether the input services have nexus with the output services, he submitted that the period is prior to 01/04/2011 and all these services would be eligible for credit as has been held in various judgments of the Tribunal and High Courts. 5. Per c .....

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he appeal records. The Commissioner(Appeals) has remanded the matter to the original authority to examine the issue of taxability of the services exported by appellant. In para 6.4 of the impugned order, the Commissioner(Appeals) has discussed in detail this issue whether the export services are taxable or not. It is also concluded by the Commissioner(Appeals) that the gamut of activities rendered by the appellant would fall under the taxable category of ITSS. It is seen from the impugned order .....

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the Commissioner(Appeals) is unsustainable. As regards the issue whether the refund claim can be rejected for the reasons that the services exported are not taxable, as already discussed, the Commissioner(Appeals) has examined the issue and held that most of the activities/services rendered would fall within the taxable category of ITSS. Further in the judgment of mPortal India Wireless Solutions Pvt. Ltd., (supra) and KPIT Cummins Infosystems Pvt. Ltd. (supra), it has been held that even if the .....

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vices are exported on a daily basis, the period of 14 days to raise an invoice is only a facilitation given to the appellants and that the date of invoice cannot be taken as a relevant date. That the date of export of service has to be considered to compute the relevant date. The appellants have contended that for the purpose of refund under Section 11B, the relevant date to be considered is either the date of payment of service tax for input services or the date of receipt of consideration for .....

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