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M/s Xilink India Technology Services Hyderabad Versus The Commissioner, C.C. E& S.T, Hyderabad-IV

Refund of un-utilized cenvat credit - 100% EOU - eligible input services - nexus with the output services - export of Information Technology Software Services (ITSS) - Held that:- the input service required in one establishment may differ from the input service required in another establishment, even though the output services rendered by both establishments may be similar - the contention of the Revenue that the judgment in Maruti Suzuki case [2009 (8) TMI 14 - SUPREME COURT] should be applied .....

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d on the ground that these services do not qualify as input services is not justified. Both grounds are answered in favour of the appellant. - Claim of refund allowed - Decided in favor of assessee. - Appeal No.ST/2099/2012 - FINAL ORDER No a/30012/2015 - Dated:- 15-12-2015 - Ms.Sulekha Beevi C.S. Judicial Member Shri S.Tirumalai, Advocate for the Appellant. Shri R.K.Dass, AR for the Respondent. ORDER: The appellants are aggrieved by the rejection of refund claim. 1. The appellants are enga .....

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us input services used for export of ITSS in terms of Rule 5 of Cenvat Credit Rules,2004 and Notification No.5/2006 CE(VI) dated 14-03-2006. On verification of the refund claims certain discrepancies were noticed and two separate show cause notices for the two different periods was issued to the appellant. Both the notices were adjudicated and order-in-original dated 30-12-2011 was passed partly allowing the refund and ordering reversal of credit along with interest for the claim rejected. The a .....

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rvices do not have nexus with the output services. Secondly that it is time barred for the reason that certain invoices pertain to the previous quarter. The summary of disallowances according to the counsel is as under: Category of service Jan.2010 to Mar.2010 October, 2010 to December, 2010 Grand total Nexus Time-barred Total Business Support Services 28,475 5,421 3 61 5,782 34,257 Chartered Accountant Services 0 68,685 65,146 1,33,831 1,33,831 Banking and Financial Service 900 1,700 0 1,700 2, .....

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60,435 65,689 Rent-a-cab-Services 23,325 58,882 5,933 46,815 70,140 Telecommunication Service 10,409 1,07,758 19,167 1,26,925 1,37,334 Air Travel Agents Service 16,074 19,790 0 19,790 35,864 Club or Association Service 5,150 6,180 0 6,180 11,330 Design Service 0 15,450 0 15,450 15,450 Total 7,73,329 5,10,054 4,41,220 9,51,274 17,24,603 4. It is submitted by the Counsel that both the authorities below have erred by relying on the judgment laid in Maruthi Suzuki Ltd. Vs C.C.E. Delhi -11 2009(240) .....

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ed that the appellant has failed to establish that the impugned services are used in or in relation to providing of output services. 6. I have heard the rival submissions and perused the records. 7. The first ground for denying refund is that the impugned services do not have nexus with the output services and that therefore they do not qualify as input services. It is pertinent to mention that the period involved is prior to 01-04-2011 when the definition of input services had a wider ambit, wh .....

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a). It was observed therein that unlike the definition of input which is restricted to inputs used directly or indirectly in or in relation to manufacture of final product,  input service not only includes services used directly or indirectly in or in relation to manufacture of final product but includes services used in relation to the business of manufacture as well. Therefore, the contention of the Revenue that the judgment in Maruthi Suzuki case should be applied and the functional utili .....

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may be similar. I may now pause to consider the second ground. 8. The second ground for denying the claim of refund is that some of the invoices submitted for the refund claim for the period October, 2010 to December, 2010 are time barred. The original authority has clearly observed in the Order-in-Original that the claim is filed within one year form the relevant date. It is sought to be denied on the ground that invoices pertain to a previous quarter. Revenue has no case that these invoices we .....

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claim is one year, there is no requirement that input credit claimed as refund should correspond to months in which exports have taken place. Again, in Philco Exports Vs CCE.New Delhi 2009(234) AELT 568( Tri-Del) it was held that merely because part of the amount claimed in each refund related to credits on input, which have not been used in the same month, the credit cannot be denied. Similar view was taken in M/s Samvardhana Motherson International Ltd Vs CCE.2015-TIOL-1469(CESTAT-Del) Applyi .....

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ces were availed in connection with statutory audit, certification in connection with foreign currency, remittances etc. These services are specifically covered under the definition of input services. The appellant has received Banking and financial services in order to provide the employees with foreign currency to enable them to meet their expenses overseas. Custom House Agent services was availed in connection with import of IT Equipment. Erection, Commission or installation services were rec .....

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cleaning which were availed for the day to day maintenance and effective functioning of the establishment. Management /business consultant services were received in connection with accounting, pay roll, paying taxes and these were essential for complying the statutory requirements. Manpower recruitment services were received in connection with recruitment of employees and supply of qualified IT professionals. Rent-a-cab services were availed for transportation of employees from their place of r .....

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