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TMI Blog2017 (1) TMI 1448X X X X Extracts X X X X X X X X Extracts X X X X ..... arious input services. The appellants filed rebate claim for an amount Rs. 37,85,284/- on 24/03/2010 for the period April 2010 to September 2010 for rebate of service tax paid on input services used in providing output services under Notification No.12/2005-ST dated 19/04/2005 issued under Rule 5 of the Export of Service Rules, 2005. The rebate was claimed with respect to various input services received by the service providers and the service tax paid by the appellant as per the invoices raised by them for export. Such services were claimed to have been utilised in providing the output services. During verification of the rebate claim and on going through the ST-3 returns for the period April 2010 to September 2010 it was observed that the appellant have shown Cenvat credit availed and its utilization. In this regard the appellant submitted that Cenvat credit utilisation shown in the ST-3 return was actually the refund received by them from the Department. It was also submitted by appellant that in respect of returns for the period October, 2010 to March,2011 that the amount shown in column opening balance and credit taken, on inputs in the service tax return is actually amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - appeared to be not admissible to the appellant. Further, few invoices for input service appear to be not eligible input service required for export of the output service. Accordingly, appellant was to show cause why the claim amounting to Rs. 6,35,000/- should not be rejected as the same appear to be filed in contravention of the provisions of the notification. Both the SCN was adjudicated through the separate Order-in-Original and the claims were rejected on contest. Being aggrieved, the appellant preferred appeal before learned Commissioner (Appeals), who vide the impugned orders have been pleased to reject the appeal upholding the rejection of the rebate claim. The ground raised before Commissioner (Appeals) by the appellant were that they are 100% STPI unit engaged in export of services and only occasionally there may be a domestic clearance. They are entitled to the rebate claim as per the notification. Almost 100% of the services are exported and all the payment for such exports are received in convertible foreign exchange. The input services have been received vide proper invoices under the Service Tax Rules and Service Tax been paid to the respective providers. There is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn they are showing the total of service tax in respect of input service mentioned in invoices, which is received by the appellant during the specified month. Learned Commissioner took the view that the appellant had availed the Cenvat credit of input services utilised for providing output service exported by them and also claimed the rebate for the same which is contrary to the condition of the said notification. As regards the services namely printing and stationery expenses, postage and Courier, professional charges and interest expenses the learned Commissioner has relied on the findings in the Order-in-Original, that the said services are not required for providing output services and hence not eligible for input service. So far the issue of excess amount claimed by the appellant is concerned it, was observed that the appellant was entitled to claim maximum amount of rebate as declared by them in their prior intimation of the declaration submitted by them as required by the notification. The appellant had claimed rebate of 6,35,000/- whereas they had filed declaration describing the taxable services to be exported and nature of input services to be used along with the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that the figures regarding the availment and utilisation of Cenvat credit in the returns are in fact the figures of rebate, which by mistake have been mentioned in column relating to availment of Cenvat credit which plea was not accepted by the Assistant Commissioner. This tribunal was pleased to observe that there is no dispute about the fact that the appellant is a Software Technology unit engaged in export of the services and the rebate of duty paid on inputs/input services used in development of software exported out of India, would be available in terms of the Notification No.12/2005-ST. So far the objection of revenue that input services in respect of which rebate has been claimed are not input services utilised for providing the services for export. It was observed that input services in respect of which rebate has the claimed like Internet Telecom Services, House Keeping Services, Professional Services, Outdoor Catering Services, Renting of Immovable Property Service, Maintenance and Repair Service, Security Agency Service, etc., are Surely input services for software unit and hence it would be totally incorrect to deny rebate on the ground that the same are not the ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they have substantially complied with all the conditions of the said notification and only for some minor non-compliance of the procedural condition, the rebate claim cannot be rejected. The learned counsel relied on the Ruling of the Punjab & Haryana High Court in the case of Commissioner of Service Tax Vs Convergys India Pvt. Ltd. reported at 2010 (20) STR 166 (P&H) wherein also the issue of rebate claim, the question framed before the Hon'ble High Court was-whether the Tribunal findings that non observance of a procedural condition of a technical nature cannot be used to deny the substantive concession, is not wrong and perverse when the filing of declaration prior to export of services as envisaged in para-3 of Notification No.12/2005-ST is mandatory and there is no provision for condoning the delay in filing declaration and the other question before the court was-whether the matter in issue is squarely covered by the ratio of law laid down in the judgment of CCE Hyderabad Versus Deloitte Tax Services India Pvt. Ltd. reported at 2008 (11) STR 266 and further question was-whether some services which are used only for maintenance and repair of capital assets and the same ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services. The ratio of services that how much is related to export and how much is related to domestic, does not arise. Accordingly, the learned counsel prays for allowing the appeal with consequential relief. 4. Learned A.R. for revenue relied on the impugned order. 5. Having considered the rival contentions we are satisfied that the claim for the rebate have been rejected without any reason and speaking order. We hold that the appellant is entitled to the rebate claim under the provisions of Notification No.12/2005-ST. We also hold that all the input services have been utilized for the export of service provided by the appellant, as there is no finding and/or case of the revenue that any part of service provided by way of output service have been provided in domestic tariff area. also hold that appellant is also entitled to rebate for input services received prior to the date of filing declaration and/or date of notification for the input services in question and input services are not restricted to date of declaration under the notification. So far the issue of rejection of the claim on the ground that the same have exceeded the estimate filed in declaration, we hold that suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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