TMI Blog2015 (10) TMI 2540X X X X Extracts X X X X X X X X Extracts X X X X ..... ating 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 - Held that:- it is not acceptable ground for rejection of rebate claim for the reason that there is no statutory requirement of agreement between service provider and foreign service recipient, so long 100% services of the appellant have been admittedly exported and convertible foreign exchange were remitted by the foreign recipient, the export transaction has been completed, therefore merely for non-submission of agreement does not debar appellant from rebate claim. Rebate claim - debit 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enkar, Addl. Commissioner (A.R.) for the Respondent ORDER These appeals are directed against Order-in- Appeal No. SB(73-75) 73-75/STC/2009 dated 3/11/2009 passed by the Commissioner of Central Excise (Appeals), Central Excise, Mumbai Zone-1, wherein Ld. Commissioner rejected appeals of the 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/176/2006-07 dated 19/1/2007 and No. ST/DN-IV/395/2007-08 dated 31/1/2008. Aggrieved by the said orders, the appellant filed appeal before the Commissioner (Appeals), who rejected the appeals on the following grounds: (I) Appellant has not obtained service tax registration prior to export of service. (II) Appellant has not followed statutory procedures of prior declaration laid down for export of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 rebate claim in respect of service tax suffered on input service therefore irrespective whether the output service is exempted or otherwise rebate of service tax on input service. is admissible and there is no condition that output service should be taxable. 3.2 As regard the Ld. Commissioner(Appeals) contention regarding the submission of agreement with the foreign recipient of the service, he submits that it is not pre requisite to submit an agreement for granting rebate claim. As regard agreement, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f duty/ service tax on input/ input services is nothing to do with the registration of the recipient of the services therefore registration cannot be made criteria to 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 prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law. Therefore, said finding recorded by the Tribunal as well as by the lower authorities cannot be sustained. Accordingly, it is set aside. Commissioner of Service Tax, Mumba-ll Vs. J.P. Morgan Services India Pvt Ltd, [2015(38) STR 410 (Tri. Mum) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and commissions the capital goods with the help of various agencies. In the case in hand, we find that there is no dispute that appellant has received the capital goods and the input services, utilized them for seating up the manufacturing facilities. To deny credit of the central excise duty paid and Service Tax paid, would be travesty of justice, more so when the assessee herein is discharging appropriate excisable duty on the finished goods cleared after taking the registration certificate. We also find that there is no dispute as to the fact that the Cenvat credit on the items like capital goods 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 provision of exempted call center service, we find that it is Government Policy across ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ping or maintaining of computer software 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 office processing primarily in relation to operation of computer system will be covered as IT services and not taxable. Payroll processing, accounts management etc. even by using computer programs, cannot be termed as activities primarily in relation to computer systems. The use of computer in these services is secondary and the primary activity is that of business-related work. Thus, these services will be taxable as Business Auxiliary Services. This is exactly the position that has been clarified, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial relief. In view of the above judgments it can be seen that the Cenvat credit/ refund claim in respect of input services used even in exempted services which has been exported, cannot be denied. 6.3 As regards the ground of rejection that appellant has not completed all the requirement of filing declaration under the notification No. 12/2005-ST prior to the export of services, we find that appellant due to some practical difficulties did not file the said 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 claim particularly when the export of service is not under dispute. 6.4 As regard the non-submission of agreement, it is not acceptable ground for rejection of rebate claim for the reason that there is no statutory requirement of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
