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M/s. Red Hat India Private Limited (Formally known as M/s Red Hat Software Services (India) Pvt Ltd. Versus Principal Commissioner, Service Tax, Commissionerate, Pune

2016 (5) TMI 942 - CESTAT MUMBAI

Entitlement of Cenvat credit and consequential refund - Rule 5 of Cenvat Credit Rules, 2004 - Works Contract Services and short term accomodation service - maintenance of office equipment and building - Works contract services are excluded from the definition of input service under Rule 2(l) ibid and accommodation is for employees of the company - Held that:- it is clear that Works Contract Services are excluded only when it is used for construction service, whereas in the present case input ser .....

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ation and service involved in the said invoice of M/s. Benchmark Engineering Pvt Ltd stand upheld.

Entitlement for interest on delayed sanctioned of refund claim - Held that:- if there is delay beyond three months from the filing of refund, the department is duty bound to grant the interest for the delayed period in sanctioning the refund. The sanction of refund is as per the prescribed rate of interest under Section 11BB of the Central Excise Act supported by the judgment of Supreme .....

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Respondent : Shri. V. Kaushik, Asstt. Commissioner(A.R.) ORDER PER : RAMESH NAIR These two appeals are directed against Orders-in- Appeal No. PUN-SVTAX-000-AAP-148-15-16 dated 3/11/2015 & No. PUN-SVTAX-000-AAP-228-15-16 dated 21/1/2016 passed by the Commissioner of Service Tax(Appeals), Pune. 2. The fact of the case is that the appellants are engaged in the providing export of services. They filed refund claim under Rule 5 of Cenvat Credit Rules, 2004. The Adjudicating authority has sanctio .....

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rvice under Rule 2(l) of Cenvat Credit Rules, 2004 and in respect of short term accommodation service the refund was disallowed on the ground that the accommodation is for employees of the company and therefore the same is not input service. Aggrieved by the impugned order, appellant filed this appeal. 3. Shri. Amit Agrawal, Ld Consultant for the appellant fairly concede that he is withdrawing the claim of refund in respect of short term accommodation and also in respect of the refund related to .....

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various equipment and building and not for building construction. Therefore it does not fall under the exclusion category. As regard the claim for interest, he submits that there is admitted delay in sanctioning of refund therefore the interest should have been given by the sanctioning authority alongwith refund claim. The interest on delayed sanction of refund is statutory as provided under Section 11BB of Central Excise Act, which is applicable in case of refund under Rule 5 also. In this sup .....

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d. Counsel that the appellant is foregoing the refund in respect of short term accommodation and in one of the invoice dated 1/11/2014 of M/s. Benchmark Engineering Pvt Ltd issues remain to be decided by me are as under: (a) Whether the appellant is entitle for Cenvat Credit and consequential refund under Rule 5 in respect of Works Contract Service which is for maintenance of office equipment and building. (b) Whether appellant is entitle for interest on delayed sanctioned of refund claim. 6.1 A .....

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relation to the manufacture of final products and clearance of final products upto the place of removal, and includes services used in relation to setting up, modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and q .....

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may be, challan for the purposes of distributing the credit of service tax paid on the said services to such manufacturer or producer or provider, as the case may be; (n) "job work" means processing or working upon of raw material or semi-finished goods supplied to the job worker, so as to complete a part or whole of the process resulting in the manufacture or finishing of an article or any operation which is essential for aforesaid process and the expression "job worker" sha .....

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lished in the Official Gazette; (p) "output service" means any taxable service, excluding the taxable service referred to in sub-clause (zzp) of clause (105) of section 65 of the Finance Act, provided by the provider of taxable service, to a customer, client, subscriber, policy holder or any other person, as the case may be, and the expressions 'provider' and 'provided' shall be construed accordingly; (q) "person liable for paying service tax" has the meaning .....

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