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Merrill Technology Services India Pvt. Ltd. Versus Commissioner of Service Tax

2016 (6) TMI 473 - CESTAT CHENNAI

Refund claim - unutilized credit accumulated prior to date of registration - Rule 5 of CCR 2004 - 100% EOU - Business Process Outsourcing activities to foreign clients - Held that:- by following the decision of Hon'ble Karnataka High Court in the case of mPortal India Wireless Solutions P.Ltd. Vs CST Bangalore [2011 (9) TMI 450 - KARNATAKA HIGH COURT], the refund of cenvat credit cannot be rejected in absence of any specific provisions which prescribe that registration is mandatory for claim of .....

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n order itself. When such a service is not found irrelevant to the business, credit of input tax cannot be denied since rent-a-cab service is essential for the movement of the employees of company from & to the work place. With regard to management, maintenance or repair services, this very Bench of the Tribunal in the case of Rotork Control (India) Pvt. Ltd. Vs CCE Chennai [2010 (6) TMI 336 - CESTAT, CHENNAI] has held that said service is eligible for claim of refund. In view of the decisions o .....

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f ₹ 2958/- is rejected. - Eligibility - Refund claim - Period of limitation - Held that:- the situation is not covered under the situation categorized under Section 11B as this is a case pertaining to claim of refund on the unutilized credit or input service. The definition of relevant date also does not cover refund of unutilized credit. Therefore, the notification issued under Rule 5 of CCR, in my view, cannot go beyond the primary Section which is Section 11B. - It was also sub .....

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In the interest of fairness, and justice, I remand this aspect of the matter to the Commissioner (Appeals) for him to examine this aspect in the light of the amendment. Appellant is at liberty to furnish all evidence and records before the first appellate authority for him to arrive at a conclusion on this issue. - Appeal No. ST/42186/2015 - Final Order No. 40938/2016 - Dated:- 10-6-2016 - Shri P. K. Choudhary, Judicial Member For the Appellant : Shri Darpan Anchalia, Counsel For the Respondent .....

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liary Service". Appellant exported the said services during the period April 2007 to March 2008. They filed a refund claim under rebate Notification No.12/2005 dt. 14.5.2006 on 30.6.2008 which was subsequently withdrawn and again the claim was filed by the appellant under Rule 5 of CCR 2004 on 20.12.2008 for a total amount of ₹ 43,26,527/- for various input services as listed out in internal page 43 of appeal memo which are used in the export of service. The adjudicating authority rej .....

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rvices were not consumed for providing output services as per Rule 2(l) of CCR. Further, he held that software development service became taxable only from 16.5.2008, hence the proportionate credit involved in the export for the computer software service for ₹ 2,958/- for the period from 19.12.2007 to March 2008 was held to be ineligible. After due process of law, the adjudicating authority vide OIO dt. 24.1.2011, sanctioned the claim partially for ₹ 7,55,114/-. Aggrieved by the said .....

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it and refund of service tax paid on input services, inter alia, by EOUs for their export of services. 3.1 Ld. counsel submits that registration of unit is not mandatory for claiming refund of cenvat credit and the limitation under Section 11B is not applicable for the refund of accumulated unutilized cenvat credit. He submits that the rejection of refund claim for the period prior to service tax registration is contrary to the various judicial pronouncements of High Courts and Tribunals. He sub .....

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Ltd. Vs CCE Belgaum 2007 (7) STR 219 (Tri.-Bang.) [on limitation] (vi) Jindal Steel & Power Ltd. Vs CCE Raipur 2013 (298) ELT 447 (Tri.-Del.) [on limitation] (vii) Aarvee Denims and Exports Ltd. Vs CCE 2009-TIOL-1524-CESTAT-AHM. Ld. counsel also relied on Ministry's circular No.120/01/2010-ST issued in F.No.354/268/2009-TRU dt. 19.1.2010 issued on account of various problems faced by exporters in availing refund of excess credit. The said circular deals with eligibility of various input .....

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r or not the Appellant is eligible for refund on input credit for service tax paid before the service became taxable ? (d) Whether or not the claim was hit by the limitation of time ? With regard to 1st issue on the aspect of unutilized accumulated credit prior to the date of registration and its eligibility for claim of refund under Rule 5 of CCR, I find that the Hon'ble Karnataka High Court in the case of mPortal India Wireless Solutions P.Ltd. Vs CST Bangalore 2012 (27) STR 134 (Kar.) has .....

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is found to be essential for the transportation of the employees in the adjudication order itself. When such a service is not found irrelevant to the business, credit of input tax cannot be denied since rent-a-cab service is essential for the movement of the employees of company from & to the work place. I find that Hon'ble Karnataka High Court in the case of T.G.Kirlosakar Automotive Pvt. Ltd. Vs CCE Bangalore 2010 (17) STR 359 (Tri.-Bang.) has held in favour of the assessee. With rega .....

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s and are therefore eligible for credit. 8. With regard to the 3rd issue on the aspect that appellants are providing taxable service w.e.f. 16.5.2008 and proportionate credit involved on the export of computer software services for the period 19.11.2007 to March 2008 is ineligible. On a perusal of the grounds of appeal paper book, the appellant has not made any valid submission to counter the finding given by the Commissioner (Appeals) other than the submission that chart enclosed in their groun .....

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d to rejection of claim for refund of unutilized credit, it is to be noted that Section 11B of the Central Excise Act with its Explanation thereto indicates that refund includes rebate of duty of excisable goods exported out of India. Therefore, in the present case, the situation is not covered under the situation categorized under Section 11B as this is a case pertaining to claim of refund on the unutilized credit or input service. The definition of relevant date also does not cover refund of u .....

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