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2016 (7) TMI 1207 - CESTAT BANGALORE

2016 (7) TMI 1207 - CESTAT BANGALORE - 2016 (45) S.T.R. 133 (Tri. - Bang.) - Refund of un-utilized Cenvat Credit - 100% EOU - appellant is exporting entire taxable services in terms of Export of Service Rules 2005 - two different yardstick, one for permitting credit and the other for eligibility for granting rebate - Held that:- the impugned order is not sustainable in law in view of the fact that all the services for which CENVAT credit of service tax has been denied are in fact input services .....

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. Briefly the facts of the present case are that the appellant is a 100% EOU registered with STPI for exporting IT services and is registered with the service tax department among others under the category of information technology software services and business auxiliary services. The appellant rendered services to ARM Ltd., U.K. as per their research and development service agreement dated 01.08.2005 and in the course of rendering taxable output services, the appellant consumes various input s .....

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06 dated 14.03.2006. Thereafter the appellant received a show-cause notice dated 29.09.2010 to show cause as to why the refund claim of ₹ 46,69,544/- should not be rejected. The appellant filed detailed reply to the show-cause notice. But the learned Assistant Commissioner rejected the entire claim of the appellant vide order-in-original dated 08.03.2011 and thereafter the appellant filed appeal before the Commissioner who vide order dated 14.12.2011 ordered for allowing the refund on few .....

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and financial service iv) business auxiliary service v) chartered accountant s service vi) club or association s membership service vii) company secretary s service viii) courier service ix) information technology software service x) insurance business services xi) internet telephony services xii)manpower recruitment or supply of agency service xiii) online information and data base access and/or retrieval services xiv) outdoor caterer s services and xv) sponsorship services. The CENVAT credit .....

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ven any cogent reason as to why service tax paid on the services cited supra is not considered as having nexus with the output services rendered. He further submitted that the definition of input service as prescribed in Rule 2(l) of CENVAT Credit Rules 2004 include all the services which are rendered in relation to business and the various courts have given very vide interpretation to the definition of input service. He further submitted that the input services in relation to which the refund h .....

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Banking and financial services: i) CCE Vs Hindustan coca cola beverages Pvt Ltd [2011-TIOL-762-CESTAT] 4) Business Auxiliary service: i) ITC Ltd Vs CCE [2010(17)STR 148] ii) Mangalam Cement Ltd Vs CCE [2010(24)STT 315] iii) Lanco Industries Ltd Vs CCE [2009-TIOL-1209] 5) Chartered Accountant s services: i) Utopia India Pvt Ltd Vs CST Bangalore[2011(23)STR 25 (Tri-Bang)] ii) Heartland Bangalore Transcription Services (P) Ltd Vs CST Bangalore [2011(21)STR 430(Tri-Bang)] iii) CCE Visakhapatnam Vs .....

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009-TIOL-1957-CESTAT-Bang] 9) Insurance auxiliary services: i) CCE Vs CCL Products India Ltd [(2009) 22 STT 36 (Tri-Bang)] 10) Information Technology software service: i) Dell International services India Pvt Ltd Vs CCE [2009-TIOL-1957-CESTAT-Bang] 11) Internet telephone services: i) Mundra Port & Special Economic Zone Ltd Vs CCE [2009(13)STR 178] ii) Metro Shoes Pvt Ltd Vs CCE [2008(10)STR 382] 12) Manpower recruitment agency s services: i) Utopia India Pvt Ltd Vs CST Bangalore [2011(23)STR .....

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is eligible for refund of unutilized portion of CENVAT credit on export of services and such refund cannot be denied when the availment of CENVAT credit has not been questioned. In support of this he relied upon the decision in the case of CST Delhi Vs Convergys India Pvt Ltd [2009-TIOL-888-CESTAT-DEL] wherein it was held that without questioning the availment of CENVAT credit, the eligibility to rebate/refund cannot be denied and that there cannot be two different yardstick, one for permitting .....

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with the intention of the legislature to provide refund to the exporters and the said intention was further reflected in the Notification No. 5/2006. On the other hand learned A.R. reiterated the findings of the Commissioner. 3. I have heard both sides and perused the material on record and has also gone through the judgments cited by the appellant wherein CENVAT credit has been allowed in respect of various input services used by the appellant for discharge of export services and here it is pe .....

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