9911796707
TMI Blog2015 (11) TMI 1561X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case is that for computing refund under Rule 5 of CCR Rules, whether for the purpose of formula, onsite service turnover shall be considered under export turnover and/or under total turnover. 2.1 The appellant filed refund claim under Rule 5 of Cenvat Credit Rules in respect accumulated Cenvat credit. For the purpose of computing refund amount, the appellant has not considered onsite services provided through their overseas branch either in the export turnover or in the total turnover. On the basis of above computation the adjudicating authority while disposing of the refund claim added the onsite service value in the total turnover of the appellant company but not included in the export turnover as a result refund amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of the appellant Revenue reiterating the grounds of appeal submits that ld. Commissioner (Appeals) has wrongly allowed the refund accepting the computation on the basis that onsite service value is not includible in the total turnover. He submits that onsite service provided through overseas branches have been provided from India, therefore it should not be considered as export turnover however though the service was provided from the overseas branches of the appellant it is part and parcel of the total business transaction of the appellant and therefore, it is correctly to be added in the total turnover. Accordingly, the rejection of the part refund claim held by the adjudicating authority is correct and legal and for the same re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d also not be added in the total turnover. As regard the club membership service, he submits that club membership fees are not fees collected for personal use of employees or recreational activity of the employee. The said office expenses are incurred for membership under Confederation of Indian Industries (CII) and Market assessment. Membership of the institution provides essential information and training on trade and industries which is pertinent for efficient performance of the services by employee of the respondent. 5. We have carefully considered the submissions made by both the sides. 6. Period involved in the present case in respect of the four appeals is December, 2011 and March, 2012. This period is covered under the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unutilized service credit will be restricted to the extent of ratio of export turnover to the total turnover for the given period to which the refund relates. In the present case, firstly it is to be decided whether the onsite services provided through overseas branches of the appellant is export service or otherwise. In term of Export of Service Rules, 2005 as amended w.e.f. 27-2-2010 the relevant provisions are reproduced below as under :- 3. Export of taxable service. - (1) Export of taxable services shall, in relation to taxable services, - (i) specified in sub-clauses (d), (m), {p), (q), (v), (zzq), (zzza), (zzzb), (zzzc), (zzzh), (zzzr), (zzzy), (zzzz), (zzzza) & (zzzzm) of clause (105) of section 65 of the Act, be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le services specified in sub-clauses (d), (zzzc), (zzzr) and (zzzzm) does not relate to immovable property; and (c) those specified in clause (ii) of this rule, when provided in relation to business or commerce, be provision of such services to a recipient located outside India and when provided otherwise, be provision of such services to a recipient located outside India at the time of provision of such service Provided that where such recipient has commercial establishment or any office relating thereto, in India, such taxable services provided shall be treated as export of service only when order for provision of such service is made from any of his commer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this position there is no doubt that the onsite services provided through overseas branch of the respondent is also export service. Therefore, as per Para 5 of Notification No. 5/2005-C.E. (N.T.), the value of such onsite services shall be taken in both, i.e., export turnover as well as in total turnover and the ratio of the refund shall be computed accordingly. 6.1 As regards the appeal of the Revenue for denial of refund in respect of club membership, from the nature of such services, it is clear that the service is of CII and Business Association which is used for providing output services. Moreover in the judgment of Finolex Cables Ltd. v. Commr. of C. Ex, Pune-I [Final Order No. A/3056/2015/SMB, dated 30-6-2015] the Cenvat cred ..... X X X X Extracts X X X X X X X X Extracts X X X X
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