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C Bay Remote Services Private Limited Versus Commissioner of Service Tax, II

2016 (8) TMI 990 - CESTAT MUMBAI

Cenvat credit - Rejection of refund claim export of services - rule 5 CENVAT credit CCR availed before Service Tax Registration Held that: - the issue is no more res-integra and is already decided in the number of cases mPortal India Wireless Solutions P. Ltd Vs. CST Bangalore 2011 (9) TMI 450 - KARNATAKA HIGH COURT. The registration is not the sole criteria for granting refund, so long the other conditions are satisfied, refund shall be granted refund allowed. - Disqualification a .....

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issible input services and credit is allowed on such services all the services are input services refund allowed. - SEZ services consumed in SEZ services provided in relation to authorized operation in SEZ Held that: - It is option available to the service provider either to pay service tax or provide the service under exemption available to the SEZ Unit. The inputs service were received on payment of service tax. Output services exported refund allowed. - Time-barred filed .....

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ld that: - if the Adjudicating authority has any doubt, he may call for the original documents, in that event appellant should submit original documents as and when required matter remanded appellant to be given opportunity of being heard appeal allowed decided in favor of appellant. - ST/85441, 85442/15 - A/88871-88872/16/SMB - Dated:- 29-7-2016 - Mr. Ramesh Nair, Member (Judicial) Shri. Mihir Deshmukh, Advocate with Abhijit Singh, and Ms. Ami Parekh, Advocate for the Appellants Shr .....

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Amount of claim (RS) Claim disallowed Reason for disallowing 1 PD/831-834 dated 30.07.2014 R-56/2009-10/271719 dated 20.07.09 Jan-08 to March 08 April 08-June 08 372154 349002 721156 i)Non Registration ii) No nexus Business Support Services- ₹ 1,010 Internet Telecommunication services-Rs 20,005 Management Maintenance or repair service - 39,194 Management Consultancy services - 39,194 Renting of Immovable property -6,27,084 Security agency services- 5,814 Telecommunication services- 16,766 .....

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Rs 2,730/-) 4 PD/831-834 dated 30.07.2014 R-123/AAA/10-11 dated 16.11.2011 Oct 2010-Dec 2010 10,77,276/- 6,17,175/- i)NO Nexus Air Travel agency -( ₹ 4,058/-) Club and association services -(Rs 309/-) General Insurance-(Rs 45,450/-) Management or maintenance of repair services-(Rs 714/-) Mandap Keeper Services (Rs 9,250/-) Rent a cab operation-(Rs 3,549/-) Storage and warehousing services-(Rs 1,997/-) ST/85442/15 Sr No O-I-A No and date OIO NO & Date Details of Refund claim Amount of c .....

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30.07.2014 R-60/HGP/07-08 dated 03.03.09 Oct 06-Sep 07 2547515 2547515 i) Time barred and hit by limitation ii) not registered under the category of BAS iii) No Nexus- Travel agency services, Rent a cab, cleaning services etc iv)non-submission of original documents 3 PD/825-827/ST-II/2014 dated 30.07.2014 ST/DIV-V/R-1/HGP/09-10 dated 17.04.09 Oct 07-Dec 07 & Jan 08 1030443 1030443 i) not registered under category of BAS /delayed in obtaining registration ii)Non submission of documents (orig .....

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om the orders of both the lower authorities, it is found that refund claim were rejected on the following counts. (a) The Cenvat credit in respect of inputs was availed before obtaining Service Tax registration. (b) Following Services does not qualify as inputs services and therefore same have no nexus with output service exported. (i) Business Support Service. (ii) Internet Commissioner Service,(iii) Management Maintenance and Repair Service, (iv) Management Consultancy Service, (v) Renting of .....

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time barred as the same were filed beyond the period of one year from the date of exports. (e) The appellant have not submitted original documents in support of their refund claim. 3. Shri. Mihir Deshmukh, Ld Counsel with Shri. Abhijit Singh, and Ms. Ami Parekh, Advocate for the appellant submits that as regard the Cenvat credit availed on the invoices prior to registration, the issue is no longer res-integra in light of following judgments of this Tribunal: (a) mPortal India Wireless Solutions .....

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ANG] 3.1 As regard the admissibility of the various service as input service , He submits that for almost all the services this Tribunal by one or other decisions held that all the services which was disputed by the Adjudicating authority have been held as input service and Cenvat credit is admissible. In this regard he placed reliance on the following judgments: (a) Nash Industries vs Comm of CUS and ST 2015 (3-) STR 1060] (b) Telco Construction Equipment Ltd vs CCE 2013 (32) STR 482 (c) Goodlu .....

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HCL Technologies Ltd. Vs Comm Cust, Excise And ST 2015(40) STR 1 1124] (j) INGERSOLL-RAND International vs CST 2015(38) STR 646] (k)] (l) Safran Engineering Services Pvt Ltd vs CST 2015 (40) STR 300 (m) Endurance Technologies Pvt Ltd vs CCE 2013 (32) STR 95] (n) Bonfiglioli Transmissions Pvt. Ltd. vs. Commissioner of Central Excise, Chennai 2011-TIOL-1239-CESTAT-MAD] (o) CCE vs Bell Ceramics 2012 (25) STR 428] (p) C. J. Gelatine Products Ltd. vs. Commissioner of Central Excise, Bhopal i - 2012 ( .....

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AD] (w) CCE, Chennai Vs. Sundaram Clayton Ltd[2010-TIOL-1075-CESTAT] 3.2 He submits that Adjudicating authority though the matter was of refund while passing adjudication order directed reversal of Cenvat credit without giving any findings on the same. He submits that there should be independent proceedings for disallowance of the credit and no show cause notice was issued in that regard to the appellant. Therefore in the matters of refund claim filed by the appellant, raising the issue whether .....

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laim was filed. It is undisputed that refund claim was filed well within one year from the date of end of each quarter. This issue has been settled in various decision of this Tribunal. 3.4 In this regard, he submits that Rule 5 does not restrict the refund in respect of service tax paid on the services received for the SEZ. It is option available to the service provider either to pay service tax or provide the service under exemption available to the SEZ Unit. 3.5 Regarding the issue that in so .....

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ed by Ld. Counsel, the issue is no longer res-integra as the registration is not the sole criteria for granting refund. I am of the view that refund under Rule 5 is granted in respect of input service used in the output service exported, so long this condition are complied with, merely because registration was not obtained refund cannot be denied. This issue has been considered by this Tribunal in various decisions as cited by the Ld. Counsel. According to which, for want of registration, refund .....

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e denied and only after adjudication of such show cause notice it can be decided whether the services on which credit was taken are admissible input service or otherwise. It is observed that adjudicating authority has not carried out such exercise and straight away held in the proceedings of refund matter that the various input services are not admissible. Accordingly Cenvat credit was denied. This is completely illegal and incorrect on the part of the adjudicating authority as well as first app .....

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Services (i) Castrol India Limited vs. Commissioner of Central Excise. Vapi - [2013 (291) E.L.T. 469 (Tri. - Ahmd.) Cleaning Services (i) HCL Technologies Ltd vs Comm. CUS, CEX and ST [2015 (40) STR 1124 ] (ii) Heartland Bangalore Transcription Ser. (P) Ltd. vs. C.S.T. Bangalore -2011 ''.21) S.T.R. 430 (-Fri. Bang) Information Technology Software Services (i) Accenture Services Pvt Ltd. vs CST [2015 (40) STR 719 ] (ii) CCE vs Mavenir Systems P Ltd[ 2012 (27) STR 510] Management, Mainten .....

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Ltd vs CST 2015 (4o) STR 719] (ii) Endurance Technologies Pvt Ltd vs CCE 2013 (32) STR 95] Rent-a-Cab Services/ Tour Operator/ Car Hire Services (i) Bonfiglioli Transmissions Pvt. Ltd. vs. Commissioner of Central Excise, Chennai 2011-TIOL-1239-CESTAT-MAD] (ii) CCE vs Bell Ceramics 2012 (25) STR 428] Security Agency Services (i) C. J. Gelatine Products Ltd. vs. Commissioner of Central Excise, Bhopal i - 2012 (25) S.T.R1o9 (Tri. Del.)] (ii) Utopia India Pvt Ltd Vs. Commissioner of Service tax, Ban .....

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LTU), Chennai Vs. Turbo Energy Ltd[2010-TIOL-1310-CESTAT-MAD] (iii) CCE, Chennai Vs. Sundaram Clayton Ltd[2010-TIOL-1075-CESTAT] From the above judgments in respect to individual services, it has been settled that all the services are input service and Cenvat credit is admissible. I find that the appellant are engaged in the providing output service under the category of Business Auxiliary Service and exports thereof. All the services were received and used by the appellant. It is not the case o .....

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business activity are admissible input services and credit is allowed on such services. Moreover, as per the above chart all the services have been held as input service therefore refund claim rejected on the ground that input service have no nexus with the export service is absolutely incorrect and illegal and same is not sustainable. 6.2 The lower authorities also contended that appellant being SEZ unit received and consumed the services in the SEZ which are otherwise exempted therefore refund .....

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