TMI Blog2016 (5) TMI 1053X X X X Extracts X X X X X X X X Extracts X X X X ..... gency Service, Chartered Accountant's Service, Insurance (Motor Vehicle) and Customs House Agents Service - Held that:- So far as the Air Travel Agency and Chartered Accountant's service is concerned, there shall be no denial of CENVAT credit, for the reason that the appellant being an importer and exporter of services, would be requiring service of Air Travel Agency and also certification by Chartered Accountant in respect of the foreign exchange receipts as well as other aspects. So far as the insurance on the motor vehicle is concerned, the period in question being Apr.-12 to Jun.-12 and amendment to the law has been made from 01.04.2011. Learned adjudicating authority shall re-examine the admissibility of CENVAT credit on such services in accordance with law. Since no finding has been made by both the authorities below, in their orders, appeal is remanded on this limited count to examine that aspect. Management, maintenance or repair service - Held that:- the adjudicating authority noticed that the same relates to supply of foods and ineligible tangible goods. He did not examine this aspect thoroughly for which he himself was under confusion without specifying the amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence, shall apply the law and pass a reasoned and speaking order. Maintenance and repair service (gardening) - Held that:- it does not appeal to common sense as to relevancy thereof to the output service. Therefore, no CENVAT credit thereof shall be admissible. Common area / parking charges and supply of food and tangible goods - Held that:- for no description and examination of evidence and application of law, those items shall receive scrutiny of the adjudicating authority for passing reasoned and speaking order granting fair opportunity of hearing to the appellant. Legal consultancy service - Held that:- CENVAT credit thereon cannot be denied since that is permissible being inextricably connected with the business operation. Business auxiliary service (not used for output service) - Held that:- shall receive the scrutiny of the adjudicating authority for no examination done by that authority and hearing the appellant, he shall pass appropriate order. Parking charges, supply of foods and tangible goods and interior decoration service, civil work - Held that:- it would be necessary for the adjudicating authority to say the reason for his disallowance since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed with the provision of refreshment, which is integrally connected to the provision of output service, developing efficiency of the staff and following the rationale of Boards Circular No.120/01/ 2010-ST, dated 09.01.2010, CENVAT credit of service tax paid is admissible. (4) Videography Service Appellant does not claim CENVAT credit on such service. (5) Clearing Forwarding Agency (CFA) This is the service of Clearing Forwarding Agency. It is explained that Clearing Forwarding Agency is nothing but CHA services, which is integrally connected with the clearance of input materials and also forwarding of the output material. That is also integrally connected with the activity of Business Support Service provided by appellant. (6) Membership Fees Membership Fees is the fees paid for enrolment of member of associations. (7) Chartered Accountant Service of Chartered Accountant is necessary for discharge of obligations under various statutes and presentation of financial statement as well as issuance of certificates. That has relevancy to the output service provided. (8) Insurance The input material comes and the output services on hard cop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) This service being integrally connected with the output service provided to reduce litigation, that is covered by the input service definition. (21) Works Contract Service (CCS) This service comprises availing of interior designing service for the office premises. Therefore CENVAT credit on such service is admissible considering the peculiar nature of the services provided by the appellant. (22) Rent-a-Cab Service (INS) Rent-a-Cab Service is eligible to get CENVAT credit since transporting employees from far away places is essential in software sector. Therefore CENVAT credit thereon is permissible following the Board s Circular No. 120/01/2010-ST, dated 09.01.2010. 2. Revenue supports the orders of the authority below stating that in absence of any nexus as well as integral connection between the input and output, proper disallowance of CENVAT credit was made in the respective appeals. 3. Heard both sides and perused the records. 4. These 18 appeals are against different orders of adjudications arose out of the common Orders-in-Appeal No.153-170/2015 (STA-I), dated 03.08.2015. Learned Commissioner (Appeals) in para 6 of his order has recorded that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. 197/2013(MST) dt. 30.5.13 38/2013(R) dt. 16.05.13 Unit-I Apr-12 to Jun-12 47,91,871/- 39,063/- 6. 327/2013(MST)dt. 28.11.13 110/2013(R) dt. 30.09.13 Unit-II Oct-12 to Dec-12 49,36,534/- 56,850/- 7. 328/2013(MST)dt. 28.11.13 111/2013(R) dt. 30.09.13 Unit-II Jan-13 to Mar-13 34,24,386/- 45,787/- 8. 329/2013(MST) dt. 28.11.13 112/2013(R) dt. 30.09.13 Oct-12 to Dec-12 53,52,080/- 5,35,856/- 9. 330/2013(MST) dt. 28.11.13 113/2013(R) dt. 30.09.13 Unit-I Jan-13 to Mar-13 57,66,043/- 63,358/- 10. 06/2014(MST) dt. 20.1.14 159/2013(R) dt. 27.12.13 Denovo Order Unit- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to send the matter back for reconsideration wasting time of the tax administrator. Appeal is therefore allowed. 2. Appeal No. ST/42114/2015 (Order-in-Original No.225/2012(R), dated 16/11/2012) (i) In this case, learned adjudicating authority examined the refund claim of the appellant and found that the claim was not in accordance with foreign exchange realisation. Therefore, in para 13 of his order, he notices that there was a discrepancy between the export turnover in the accounts and ST-3 returns. Considering this aspect, he disallowed refund claim to the extent of ₹ 38,300/-. He discarded the plea of accrual basis of accounting and in absence of reconciliation, he dismissed the plea of the appellant. (ii) Learned Commissioner (Appeals) has not at all examined what was the issue before him in Appeal No.21/2013 but has abruptly come to the conclusion on a different premise holding inadmissibility of certain input credit. Therefore, the matter is remanded to him re-examine the controversy before him as emanated from the Order-in-Original and upon hearing the appellant shall pass appropriate order. 3. Appeal No. ST/42115/2015 (Order-in-Original No.224/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Agency and Chartered Accountants service is concerned, there shall be no denial of CENVAT credit, for the reason that the appellant being an importer and exporter of services, would be requiring service of Air Travel Agency and also certification by Chartered Accountant in respect of the foreign exchange receipts as well as other aspects. Therefore, appellant is entitled to CENVAT credit on these two services. (ii) So far as the insurance on the motor vehicle is concerned, the period in question being Apr.-12 to Jun.-12 and amendment to the law has been made from 01.04.2011. Learned adjudicating authority shall re-examine the admissibility of CENVAT credit on such services in accordance with law. Since no finding has been made by both the authorities below, in their orders, appeal is remanded on this limited count to examine that aspect. (iii) In the result appeal is partly allowed and partly remanded to the adjudicating authority to the extent indicated above. 6. Appeal No. ST/42118/2015 (Order-in-Original No.110/2013(R), dated 30.9.2013) (i) The learned adjudicating authority was of the opinion that clearing and forwarding agency service, air travel agency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,883/- and result of the enquiry confronted to the appellant. Upon hearing the appellant, appropriate order shall be passed. 8. Appeal No. ST/42120/2015 (Order-in-Original No.112/2013(R), dated 30/09/2013) (i) Learned adjudicating authority disallowed CENVAT credit on clearing and forwarding agency service, business auxiliary service (membership fee), air travel service, works contract service. So far as clearing and forwarding agency service as well as air travel agency service are concerned, credit thereof is allowed for the reasons stated in the preceding paragraphs. (ii) Learned adjudicating authority did not examine what was the works contract service availed by the appellant. Therefore, he has to examine the relevancy of such service and hearing the appellant thoroughly shall pass appropriate order. (iii) So far as business auxiliary service (membership fee), it does not appeal to common sense as to relevancy thereof to allow CENVAT credit. Accordingly, no claim thereon shall be admissible. 9. Appeal No. ST/42121/2015 (Order-in-Original No.113/2013(R) dated 30.9.2013) (i) Disallowance of CENVAT credit in this case relates to insurance auxiliary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , that aspect needs examination by the adjudicating authority and considering plea of the appellant shall apply law and pass appropriate order. (ii) So far as business auxiliary service (membership fee) is concerned, appellant is not eligible to CENVAT credit on such service as has been held in the preceding paragraphs. (iii) So far as air travel agency service and customs house agency service are concerned, for the reasons stated in the preceding paragraphs, appellant is entitled to credit thereof. (iv) So far as maintenance and repair service (gardening) is concerned, that does not appeal to common sense as to relevancy thereof to the output service. Therefore, no CENVAT credit thereof shall be admissible. Appeal is disposed accordingly. 12. Appeal No. ST/42124/2015 (Order-in-Original No.11/2014(R), dated 28.4.2014) (i) Learned adjudicating authority has disallowed CENVAT credit on insurance auxiliary service (motor car), business auxiliary service (membership fee), air travel agent service, customs house agent service, maintenance and repair (gardening) and such disallowance was to the tune of ₹ 51,790/-. (ii) Considering the similar grievanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is entitled to credit of service tax paid on air travel agent service, CHA service for the reasons herein before stated. (ii) So far as maintenance and repair service (gardening) is concerned, there shall be no allowance of CENVAT credit for no nexus between input and output service as has been held before in the preceding paragraph. (iii) So far as legal consultancy service is concerned, CENVAT credit thereon cannot be denied since that is permissible being inextricably connected with the business operation. (iv) Business auxiliary service (not used for output service) shall receive the scrutiny of the adjudicating authority for no examination done by that authority and hearing the appellant, he shall pass appropriate order. (v) It may be stated that the disallowance of CENVAT credit in this appeal is to the tune of ₹ 79,370/- as per para 10 of the adjudication order. 16. Appeal No. ST/42128/2015 (Order-in-Original No.62/2014(R), dated 26.8.2014) (i) This appeal is against disallowance of CENVAT credit of ₹ 2,36,976/- on account of service tax paid on CHA service, parking charges, supply of foods and tangible goods and interior decoratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Result of the Appeal 1. ST/42113/2015 Allowed 2. ST/42114/2015 Remanded 3. ST/42115/2015 Remanded 4. ST/42116/2015 Partly allowed 5. ST/42117/2015 Partly allowed 6. ST/42118/2015 Partly allowed partly remanded 7. ST/42119/2015 Partly allowed and partly Remanded 8. ST/42120/2015 Partly allowed 9, ST/42121/2015 Partly allowed partly remanded 10. ST/42122/2015 Remanded 11. ST/42123/2015 Partly allowed and partly remanded 12. ST/42124/2015 Partly allowed and partly remanded 13. ST/42125/2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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