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2016 (5) TMI 1053 - CESTAT CHENNAI

2016 (5) TMI 1053 - CESTAT CHENNAI - TMI - Refund claim - Allowability of input service Cenvat credit - Claim was not in accordance with foreign exchange realisation - Held that:- 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 Or .....

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y, taking the disallowance aspect hereby ordered.

Air Travel Agency 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 .....

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> 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 credit allocable to this service and evidence if any before him. However, considering that remanding back the matter for a small amount of credit shall serve no useful purpose but shall result in waste of time and publ .....

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lt of the enquiry confronted to the appellant for rebuttal. Upon hearing the appellant, appropriate order shall be passed.

Works contract service - Held that:- 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.

Business auxiliary service (membership fee) - Held that:- it does not appeal to co .....

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eld that:- the authority has not at all examined any aspect thereof. The disallowance being limited to ₹ 444/- on two counts, the authority shall grant opportunity to the appellant to rectify the defect and pass appropriate order upon hearing the appellant.

Validity of adjudicating authority order - not at all examined the justification for disallowance of CENVAT credit on the respective services - Held that:- in absence of any examination by the adjudicating authority it is pr .....

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ible.

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 operati .....

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. Therefore, appellant is entitled to reasonable opportunity of hearing and considering the appellant's pleading as well as evidence, the authority shall pass order in the re-adjudication proceeding.

Business Auxiliary Service - Held that:- for no reasoning stated, learned adjudicating authority shall scrutinise the same and hearing the pleading of the appellant shall pass appropriate order in accordance with law. - Appeal disposed of - Appeal Nos. ST/42113 to 42130/2015 - Final Order .....

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e medical agencies abroad for meaningful use thereof. While building database providing Business support service, various services were consumed as input services as has been dealt in the respective orders appealed, passed by the appellate authority. Appellant places that if there is an appreciation of the relevancy of such input services exclusively used for providing output service that shall resolve the dispute between the parties. The Justification for grant of CENVAT credit on each such inp .....

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earing House Agency Service (CHA) Service of Clearing House Agency Service is availed in order to clear input data consignments came from abroad. That has a direct nexus to the Business Support Service provided by the appellant. (3) Facility Services It is explained that such service is availed to keep the working group refreshed 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 B .....

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y 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 copy .....

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ir Service relate to equipments as well as hardware. That is integrally connected with the output service provided. Revenue objects to this proposition stating that maintenance of garden should not be eligible for grant of CENVAT credit. Appellant says no undue claim on such count has been made. (11) Insurance Auxiliary Service (IAS) This service is to insure the motor vehicles of the appellant which are used in connection with the provision of output service. (12) Business Auxiliary Service (BA .....

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admissible on such count following the Boards Circular No. 120/01/2010-ST, dated 09.01.2010. (16) Telephone Operators Service (TO) Input credit on such service is not pressed. (17) Common Parking Operators Service (MMR) Service tax has suffered to avail the parking area, service which is an immovable property. This being also integrally connected with the output service, CENVAT credit is admissible. (18) Landscaping Service (LS) Appellant does not press claim of CENVAT on such count. (19) Renti .....

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) 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 .....

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lant availed input service credit and claimed refund thereof in respect of services involved for the following services: S. No. Name of the Services 01 Air Travel Service 02 Vehicle Insurance 03 Business Auxiliary Service 04 Maintenance and Repair Service 05 Customs House Agent Services 06 Transport Service 07 Rent to Cafeteria Service 08 Legal Service 5. It is observation of the learned Commissioner (Appeals) that the input should have nexus with the final product to output services to get cred .....

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9,04,963/- 20,313/- 2. 21/2013(MST) dt. 17.1.13 225/2012(R) dt. 16.11.12 Unit-II Jan-12 to Mar-12 36,26,362/- 38,300/- 3. 22/2013(MST) dt. 17.1.13 225/2012(R) dt. 16.11.12 Unit-I Jan-12 to Mar-12 33,26,362/- 54,594/- 4. 196/2013(MST) dt. 30.5.13 37/2013(R) dt. 15.05.13 Unit-I July-12 to Sep-12 46,71,999/- 29,834/- 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 49,36,5 .....

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Unit-I Apr-13 to Jun-13 52,86,396/- 84,673/- 12. 79/2014(MST) dt. 21.05.14 11/2014(R) dt. 28.04.14 Unit-I July-13 to Sep-13 43,86,592/- 51,790/- 13. 80/2014(MST) dt. 21.05.14 10/2014(R) dt. 28.04.14 Unit-II Apr-13 to Jun-13 9,90,675/- 89,699/- 14. 81/2014(MST) dt. 21.05.14 12/2014(R)dt. 28.04.14 Unit-II July-13 to Sep-13 6,28,710/- 83,720/- 15. 193/2014(MST) dt. 26.09.14 61/2014(R) dt.26.08.14 Unit-I Oct-13 to Dec-13 39,02,867/- 79,370/- 16. 194/2014(MST) dt. 26.09.14 62/2014(R) dt.26.08.14 Unit .....

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ppeal shall not enjoy the CENVAT credit. But he has not examined the pith and substance of the respective claim. A cryptic and unreasoned order has been passed. Considering that the dispute centres around the small amount of refund of ₹ 20,313/-, it is considered proper not to waste time of Tribunal nor 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 16/11/20 .....

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ed 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.224/2012(R), dated .....

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dismissed the plea of the appellant. (ii) Learned Commissioner (Appeals) has not at all examined what was the issue before him in Appeal No.22/2013 before him but has abruptly come to the conclusion on a different premise holding inadmissibility of certain input credit. Therefore, the matter is remanded to him to re-examine the controversy before him as emanated from the Order-in-Original and upon hearing the appellant shall pass appropriate order. 4. Appeal No. ST/42116/2015 (Order-in-Original .....

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. Considering the necessity of Carrying & Forwarding Agency Service, in the course of import and export, the appeal is allowed on this count disallowing CENVAT credit on Membership Fees, which has no connection to the output service provided and appellant is entitled to the refund which shall be recalculated by the adjudicating authority, taking the disallowance aspect hereby ordered. 5. Appeal No. ST/42117/2015 (Order-in-Original No.38/2013(R), dated 16/05/2013) (i) In this case, the appell .....

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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 th .....

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forwarding agency service, air travel agency service, management, maintenance or repair service are not eligible to get CENVAT credit for which he disallowed CENVAT credit of ₹ 22,065/- and reduced refund of the claimed credit. It may be stated that the decision to allow CENVAT credit on clearing and forwarding agency service as well as air travel agency service has been made in the preceding paragraph for which those two services are eligible to get CENVAT credit. (ii) So far as managemen .....

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e appeal on such count is allowed. (iii) The next disallowance is that the invoice of the appellant carried the name of DLF Utilities Limited, which had defective address. It is relevant for the law that if the service has been utilized, the authority should cause enquiry as to the genuineness of the service provider and allow the same provided the tax paid by appellant had gone into the treasury. Therefore, it is left to the authority to enquire who was the service provider in respect of credit .....

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carried the name of DLF Utilities Limited which had defective address. It is relevant for the law that if the service has been utilized, the authority should cause enquiry as to the genuineness of the service provider and allow the same provided the tax paid by the appellant had gone into the treasury. Therefore, it is left to the authority to enquire who was the service provider in respect of credit of ₹ 35,883/- and result of the enquiry confronted to the appellant. Upon hearing the app .....

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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 .....

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rned, the authority has not at all examined as to relevancy and evidence thereof to declare that ineligible input. Therefore, he should examine the relevancy of the services and its nexus as well as integral connection to the output service and hearing the appellant shall pass appropriate order. (iv) The third dispute is on finding defective invoices. But the appellant says that the authority has not at all examined any aspect thereof. The disallowance being limited to ₹ 444/- on two count .....

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eached to the conclusion that there is no need of allowance of CENVAT credit on the respective services. In absence of any examination by the adjudicating authority it is premature to pass any order as to justification for eligibility thereof. Therefore, learned adjudicating authority shall rehear the appellant on each and every aspect of the disallowance and hearing the appellant both on facts and evidence, shall apply the law and pass a reasoned and speaking order. 11. Appeal No. ST/42123/2015 .....

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ng 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 servic .....

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and repair (gardening) and such disallowance was to the tune of ₹ 51,790/-. (ii) Considering the similar grievance of the appellant, those items are already dealt in the preceding paragraphs which are to be looked into by the adjudicating authority. However, the appellant shall be entitled to get the credit on air travel agent service and customs house agent service and not entitled to the credit of maintenance and repair service (gardening) business auxiliary service (membership fee). Th .....

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paragraph. So far as other claims of CENVAT credit are concerned, 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. It may be stated that the disallowance have resulted in denial of CENVAT credit of ₹ 89,699/- in para 11 of the adjudication order. 14. Appeal No. ST/42126/2015 (Order-in-Original No.12/2014(R), d .....

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wance in this appeal is to the tune of ₹ 83,720/- as is revealed from para 11 of the adjudication order. 15. Appeal No. ST/42127/2015 (Order-in-Original No.61/2014(R), dated 26.8.2014) (i) This appeal has given rise to the dispute on the disallowance of CENVAT credit on air travel agent service, CHA service, maintenance and repair service (gardening), business auxiliary service not used for output service and legal consultancy service. It may be stated that the appellant is entitled to cre .....

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) 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 .....

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ore, appellant is entitled to reasonable opportunity of hearing and considering the appellants pleading as well as evidence, the authority shall pass order in the re-adjudication proceeding. 17. Appeal No. ST/42129/2015 (Order-in-Original No.9/2015(R), dated 7.5.2015) (i) This appeal is against the CENVAT credit on air travel agent service, CHA service, maintenance and repair service (gardening), business auxiliary service, legal consultancy service. The disallowance was to the tune of ₹ .....

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