TMI Blog2017 (4) TMI 992X X X X Extracts X X X X X X X X Extracts X X X X ..... not apply for refund of accumulated Cenvat credit - The services referred do not appear to fall within the category of BAS but fall under the category of IT services - it appears that the above aspects were not examined by the lower authority - appeal allowed by way of remand. - ST/732-735/2009 & ST/1343/2010 - A/30573-30577/2017 - Dated:- 23-2-2017 - Mr. Satish Chandra, President And Mr. Madhu Mohan Damodhar, Member (Technical) Sh. P. R.V. Ramanan, Special Counsel for the Appellant Sh. S. Thirumalai, Advocate for the Respondent ORDER [Order Per: (Dr.) Satish Chandra] 1. The present appeals are filed by the department against the impugned Orders-in-Appeal. 2. The brief facts of the matter are that the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... category of 'software and IT enabled services'. Further, 'Softex' forms filed show that what was exported was 'software and IT enabled services'. (ii) As per the reasoned findings of the adjudicating authority, the services rendered do not fall within the category of BAS. In fact they fall under the category of ITS, which were at the relevant point of time not taxable under BAS. (iii) CCE-A has relied on the decision of the CESTAT in the case of Deloitte Services [2008 TIOL-629-CESTAT-Bang.]. This decision was rendered for the period prior to 1/5/2006, when ITS interalia included the activity of computerized data processing . (iv) The relevance of the declaration made in the Softex forms that the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of S.T., Bangalore Vs Tavant Technologies India Pvt Ltd., [2016 (43) STR 57 (Kar)] which followed the mPortal judgment interalia held that there was no provision under Rule 5 of the CENVAT Credit Rules which provides for registration of the service. (d) It is not correct to state that the judgment in mPortal (supra) has been rendered per incuriam. In this regard, the observation of the Hon ble Andhra Pradesh High Court in the case of Agarwal Industries Ltd. Vs. UOI and another 2016-TIOL-429-HC-AP-Cus . is squarely applicable to this contention. (e) The classification under Business Auxiliary Services has been accepted for the period May 05 to September 2006 and the refund on the very same agreements for export of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r marketing of service provided by the client includes any service provided in relation to promotion or marketing of games of chance, organized, conducted or promoted by the client, in whatever form or by whatever name called, whether or not conducted online, including lottery, lotto, bingo; (iii) any customer care service provided on behalf of the client; or (iv) Procurement of goods or services, which are inputs for the client; or Explanation. - For the removal of doubts, it is hereby declared that for the purposes of this sub-clause, inputs means all goods or services intended for use by the client; [(v) Production or processing of goods for, or on behalf of, the client; (vi) provision of service on behalf o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices referred do not appear to fall within the category of BAS but fall under the category of IT services. From the impugned order, it appears that the above aspects were not examined by the lower authority. When it is so, we deem it fit that matter needs a fresh adjudication. Hence, we set aside the impugned orders for denovo adjudication taking all these aspects into consideration including the ratios of the judgments cited supra, to the extent that they are applicable to the facts of these cases. Reasonable opportunity should be provided to the respondents. Additional evidence, if felt necessary may be submitted by the respondents. In the result all the appeals are allowed by way of remand. (Order dictated pronounced in open court) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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