TMI Blog2016 (6) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... tax paid is in relation to output service - Held that:- the services for which the authority has held that they do not have not any direct nexus for providing the output service, are outdoor catering, transportation of employees, office building maintenance and air travel agency services. Rent-a-cab service 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. With regard to management, maintenance or repair services, this very Bench of the Tribunal in the case of Rotork Control (India) Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side. But, I find that the first appellate authority would not have had a chance to look into the amendment to come to the conclusion. 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 : Shri L. Paneerselvam, AC (AR) ORDER The present appeal is arising out of OIA dt. 27.7.2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 OIO, appellant preferred appeal before Commissioner (Appeals) against rejection of balance refund of ₹ 35,71,413/-. The learned Commissioner (Appeals) vide impugned order dt. 27.7.2015 upheld the OIO. Hence the present appeal. 3. The learned counsel appearing on behalf of appellant submits that both the lower authorities have not taken int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.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 services like outdoor catering or rent-a-cab services and on limitation. 4. Ld. A.R appeared for Revenue reiterated the findings of the impugned order. 5. The issue for consideration can be grouped into following categories :- (a) Whether or not the unutilized credit accumulated prior to date of registration is eligible for refund under Rule 5 of the CCR ? (b) Whether or not the input service credit availed on service tax paid is in relation to output service and eligible for refund ? (c) Whether or not the Appellant is eligible for refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir services, this very Bench of the Tribunal in the case of Rotork Control (India) Pvt. Ltd. Vs CCE Chennai 2010-TIOL-1476-CESTAT-MAD has held that said service is eligible for claim of refund. 7. The consistent view of various courts including the jurisdictional Madras High Court is that prior to 2011, the appellants are eligible for credit with regard to Information Technology Services and Air Travel Agency services. These activities are relating to business 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made and it is only prospective in nature and since the period of dispute is only retrospective in their case it would not get covered with the amendment and prayed that this portion of the refund order holding that refund is time-barred be set aside. But, I find that the first appellate authority would not have had a chance to look into the amendment to come to the conclusion. 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. 10. In the result, I pass the following order :- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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