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2015 (10) TMI 2540 - CESTAT MUMBAI

2015 (10) TMI 2540 - CESTAT MUMBAI - TMI - 100% EOU - Rebate claims - Notification No. 12/2005-ST dated 19/4/2005 - export of Business Auxiliary Services i.e. Call Center Services - service tax paid on input services - non-obtainance of service tax registration prior to export of service - Held that:- there is no provision in law that for the purpose of refund of duty/ service tax suffered on input/ input services prior registration is required. The said payment of duty/ service tax on input/ in .....

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fact we are of the view that the declaration was indeed filed before the grant of rebate claim. The Adjudicating authority can very well verify the information containing in the declaration and after satisfying, the rebate claim can be sanctioned therefore even though the declaration was not filed prior to the export of the services, this cannot be the reason for rejection of the claim particularly when the export of service is not under dispute. - Rebate claim - non-submission of agreement .....

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note for the input services - whether admissible Cenvatable documents under the Service Tax Rules, 1994 or not - Held that:- firstly the debit note is also a admissible documents as proof of payment of service tax so long as it contains all the information required under the Rule 9(2) of the CCR, 2004. In the case of Pharma Lab Process Equipments P. Ltd Vs. CE, Ahmedabad [2009 (4) TMI 142 - CESTAT AHMEDABAD] -Cenvat credit was allowed on the strength of debit note therefore debit note has been .....

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e service - Held that:- we are of the view that this observation was made on the basis of non-receipt of invoices. As per the submission of the appellant that all the invoices were submitted and the services till December, 2005 were provided to UK and Australia and from January, 2006 services were provided to Hutchison. This can be verified from the invoices. Since no verification of the claim was properly carried out by the Adjudicating authority, it is premature to make a final view on this as .....

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nt. Therefore merely because such terminology used in the FIRC, it cannot be concluded that this remittance is not related to the export of services, unless it is proved that such remittance is from some other transaction, which is not the Revenue's case. - Therefore, we are of the considered view that rebate claims were wrongly rejected on the ground taken in the adjudication order and in impugned order of first appellate authority, therefore it is not sustainable. - Appeals disposed of by .....

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appellant upholding the order-in-originals dated 18/ 1/2007, 19/1/2007 and 31/1/2008. 2. The fact of the present case is that the appellant is 100% exporter of services of Business Auxiliary Services i.e. Call Center Services. They filed five rebate claims under Notification No. 12/2005-ST dated 19/4/2005 in respect of service tax paid on input services. The Adjudicating authority has rejected all the claims vide Orders in Original No. ST/DN-IV/172/2006-07 dated 18/1/2007, No. ST/DN-IV/176/2006 .....

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up to 28/2/2006 from payment of service tax under Notification No. 8/2003 dated 20/6/2003. (IV) Appellant did not submit any Agreement with the Foreign based service recipient regarding provision of services. (V) Input Services in respect of substantial amount were received by the appellant under debit notes which are not admissible Cenvatable documents under the Service Tax Rules, 1994. (VI) Appellant though have submitted invoices raised by them to their foreign client, these invoices are onl .....

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ppellant are not with reference to the invoices, letters submitted by the appellant. It shows 'only advance against export of services to be rendered' or 'fund transfer', the appellant have not explained this term. (VIII) All the total amount of remittance received by the appellant is less than total amount of export under the invoices, letters issued by them to their foreign client during three separate period of their rebate claim. (IX) Remittance are received from the M/s. Hut .....

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ner (Appeals) in the impugned order. However, refund was rejected only on the procedural lapse. He submits that as regard the ground for rejection that appellant has not obtained registration prior to the export of services. He submits that there is no statutory requirement for obtaining registration in order to claim rebate of service tax in respect of input services. 3.1 As regard issue that up to 28.202006 call centre services were not exempted therefore rebate claim is not admissible. The re .....

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nt, it is purely commercial matter between service provider and service recipient, they may or may not enter into agreement. Only requirement for rebate is that the service of the appellant should be exported which is not under dispute therefore on this ground rebate could not have been rejected. 3.3 As regard debit note received by the appellant in respect of input service, debit note is also admissible cenvatable documents so long it contains all the information as required under the service t .....

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as debit note is also proof of payment of service tax. 3.4 As regard non submission of all the invoices raised to the foreign client, he submits that it is incorrect to say that the invoices were not submitted. It can be seen from the refund claim and subsequent submission of the documents which clearly shows that all the invoices have been submitted to the adjudicating authority. 3.5 Regarding the confusion that who are the recipient of the services, whether UK or Australia, he submits that fi .....

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tchison Call Centre Holding Ltd. and therefore there is no ambiguity about the recipient of the service to whom services were exported. 4. Shri. D. Nagvenkar, Ld. Addle Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the Ld. Commissioner (Appeals) given in the impugned order. 5. We have carefully considered the submissions made by both sides. 6. We do not find reasoning given by the Ld. Commissioner (Appeals) as convincing for rejection of rebate claim. However, .....

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o reject the refund claim. This view has been re-enforced by this Tribunal in the following cases. mPortal India wireless Solutions Pvt Ltd Vs. CST Bangalore[2012(27) STR 134 (Kar)] 7. Insofar as requirement of registration with the department as a condition precedent for claiming Cenvat credit is concerned, learned counsel appearing for both parties were unable to point out any provision in the Cenvat Credit Rules which impose such restriction. In the absence of a statutory provision which pres .....

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. Mum)] 7. On the second issue of late registration, the respondents have rightly relied on Rule 4 of the Service Tax Rules under which registration is deemed to be granted within seven days of the application for registration. In the present case, the respondent had applied for centralized registration on 5-10-2006. Some communication took place thereafter between the respondent and the department, which has been shown by the respondent and the registration was finally granted on 26-12-2008. We .....

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it before registration is granted. The Hon'ble High Court held that "insofar as requirement of registration with the department as a condition precedent for claiming Cenvat credit is concerted, learned counsel appearing for both parties were unable to point out any provision in the Cenvat Credit Rules which impose such restriction. In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entit .....

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a diagonally opposite direction, as against the principles of the reducing the cascading effect of taxes. It is a common sense that unless a factory is setup, trial runs are taken, an assessee will be unable to manufacture excisable products. The entire exercise of the assessee for setting up of factory is for manufacturing excisable goods which can be done so only when he erects, installs and commissions the capital goods with the help of various agencies. In the case in hand, we find that ther .....

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and input services is not denied for any other reason and appellant assessee is eligible for availment of such credit. In our view, such an order which denies Cenvat credit to the appellant on a very technical ground is unsustainable and needs to be set aside. In view of the above judgments, it is clear that lower authority could not have denied the refund thereof to the appellant on the ground of registration. 6.2 Regarding the issue that refund claimed in respect of input services used in the .....

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tput service is exempted the duty suffered on the input services has to be refunded to the exporter. This issue came up before this Tribunal and High Court earlier, wherein it was held as under: Dell International Services India P. Ltd. Vs. CCE, Bangalore [2010(17) STR 540(Tri. Bang)]. 11. We have gone through the records of the case carefully. In respect of Appeal No. ST/ 115/2008, the rebate has been rejected on the ground that the service exported is not taxable. However, in the other appeal .....

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acilitation services (b) Back office accounting and transaction processing (c) And IT support services of remote maintenance, trouble shooting, catering to Dell's group companies outside India and their overseas customers. 11.1 According to the appellants, the above services would qualify to be Business Auxiliary Services. In any case, in the light of the Board's clarification dated 21-8-2003, the above services cannot be categorized under "Information Technology Service" and e .....

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tware or computerized data processing or system networking or any other service primarily in relation to operation of computer systems. The last words "primarily in relation to operation of computer systems" make the intention abundantly clear. The words "back office processing" used in the clarification dated 28-2-2003 have to be read in conjunction with the other terms used therein viz. data processing, networking, computer facility management. Thus, any service of back off .....

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, in the circular dated 20-6-2003. 12. In any case, the Commissioner (Appeals) in the orders 83 & 83A/2008 S.T. had already stated that the service rendered by the appellant and exported are taxable services. It is also not in dispute that the appellants utilized the various inputs services, which had already been enumerated in the submission of the appellants. Once the taxable service is exported and various input services have been utilized for providing the output service the appellants c .....

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iness", there cannot be any dispute that the input services rendered by the appellants are all activities relating to the output services exported by the appellant. Moreover, on going through the records, we are satisfied that the appellants had fulfilled the five conditions of Notification No. 12/2005 already enumerated in the submission of the appellants. In these circumstances, the impugned orders do not have any merit. The appellants are entitled for the rebate in respect of all the reb .....

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n by this Tribunal in the case of Dell International Services India Pvt. Ltd v. Commissioner of Central Excise, Bangalore - 2010 (17) S.T.R. 540 (Tri. -Bang.) wherein this Tribunal has observed as under : "11. -, 12. - 5. Going through the above said case law, we find that the appellant are entitled for input service credit which they have availed for providing the service, which is exempt by way of Notification No. 8/2003 but have been exported. Accordingly, we set aside the impugned order .....

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declaration before export of the services however such declaration was filed alongwith the rebate claim. In this fact we are of the view that the declaration was indeed filed before the grant of rebate claim. The Adjudicating authority can very well verify the information containing in the declaration and after satisfying, the rebate claim can be sanctioned therefore even though the declaration was not filed prior to the export of the services, this cannot be the reason for rejection of the clai .....

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n-submission of agreement does not debar appellant from rebate claim. 6.5 Regarding debit note for the input services, we are of the view that firstly the debit note is also a admissible documents as proof of payment of service tax so long as it contains all the information required under the Rule 9(2) of the CCR, 2004. In the case of Pharma Lab Process Equipments P. Ltd Vs. CE, Ahmedabad [2009 (18) STR 914 (Tri. Ahd.)] Cenvat credit was allowed on the strength of debit note therefore debit note .....

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