TMI Blog2018 (6) TMI 667X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore even though the reimbursement toward supply of diesel, it is related to supply of service to operate DG set. Vendor also paid service tax on such charges - this payment is towards preparation of various study material used for purpose of training needs of the employee which are required to provide out put service of the appellant - credit allowed. Refund claim - erection, commission and installation - rejection on the ground that service cannot be identified form the invoices - Held that:- It is clear that service is input service and clearly identifiable hence there was no reason to deny the refund - refund allowed. Rejection of refund claim on consulting charges paid for lease of premises on the ground that the said premises is not registered - Held that:- This issue is no longer res-integra as in case of M Portal India wireless solutions P Ltd vs. C.S.T [2011 (9) TMI 450 - KARNATAKA HIGH COURT] it was held that merely because premises is not registered credit cannot be denied hence refund is admissible. As regard the claim of the interest, since the said issue is not arising out of order, the same may be decided by the adjudicating authority in accordance with l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Consulting Pvt Ltd is not incorporated ST/85468,85531,85746,85747,85749/2 3 018 in the ST 2 certificate of the appellant. Accordingly, the appellant is not entitled to refund of credit on the same(Rs. 1,100). (iv) The learned Commissioner (Appeals) has rejected the contention of the appellant that while computation of refund under Rule 5 of the CCR read with Notification No. 27/2012, refund should be computed by applying the export ratio on total cenvat credit availed for the period instead of unutilised cenvat credit remaining at the end of the period(Rs. 33,887) (v) It is inter alia held on scrutiny of the invoices it is clear that customs house agent service is availed for debonding and not procurement of imported goods as claimed by the appellant used in providing output service(Rs. 22,857). 2. Being aggrieved by the said order, appellant filed present appeal. 3. Shri Prasad Paranjape, Ld. Counsel for the appellant submits that as regard the qualification of the service as input service, all the services were used in the providing output services. Appellant s services are exported exclusively therefore all the services used are input service. None of the servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the said premises was not registered, he submits that issue has been settled in various judgments that even if premises is not registered but so long as it was used for providing output service, credit is admissible and consequently refund is also admissible. He placed reliance on the following judgments: (a) Commissioner of C. Ex. ST NoidaVs Samsung India Electronics Pvt Ltd [2017(52) S.T.R. 497 (Tri. All)] ST/85468,85531,85746,85747,85749/2 6 018 affirmed in Commissioner Vs. Samsung India Electronics Pvt Ltd [2017(52) S.T.R. J 253(All)] (b) Deepak Fertilizer Petrochemicals Corporation Ltd Vs CCE[2013(32) S.TR. 532(Bom)] (c) M portal India Wireless Solutions P. Ltd Vs. C.S.T. [2012(27)S.T.R. 134(Kar)] 7. As regard the dispute on the formula provided under Rule 5 of CCR, 2004 he submits that Ld. Commissioner has failed to correctly apply the formula for computation of refund for the period April, 2013 to September, 2013 inasmuch as he contended that unutilised Cenvat credit remaining at the end of the period should be taken as total Cenvat credit availed. He submits that as per Rule 5 of Cenvat Credit Rules, 2004 net cenvat credit defined, according to which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther, the DG Sets are essential to ensure that the power supply to the premises of the company is uninterrupted so that the provision of output services to the clients can be seamless. Accordingly, these services are used in relation to the output services provided by the company. The specimen copies of the invoices and the judgments in relation to renting of immovable property services are attached at page no. 22 to 29 of the compilation. (iii) Erection, Commissioning and Installation services - The Appellant requires these services for modernisation/ renovation of various electrical/ office equipment used in the business premises which support the process of output services exported. Further, these services have been procured with respect to the installation/ re-erection of office units of the Appellant and other office equipment used at the business premises from where the output services are provided. These units/ equipment are used on a day-to-day basis in provision of output services. Accordingly, these services are essential to keep the assets in good condition without which the output services cannot be rendered. Therefore, maintenance and repair, installation and re- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant in relation to catering facility provided to its employees. Further, it is pertinent to note that the Appellant being a business process outsourcing unit, its business runs till late night and the employees of the Appellant may not be getting food/ beverages close to office at odd hours. Hence, the Appellant is bound to provide food and snacks to the employees at the office cafeteria itself. It isa responsibility of the Appellant to look after the basic needs of the employees, so that the business of the Appellant can run smoothly. Accordingly, these services are essentially required by the Appellant for business purpose. Further, being a BPO, outdoor catering services are specifically allowed as refund to the company in accordance with the Circular No 120/01/2010 dated 19 January 2010. (vii) Service in relation to purchase of foreign exchange The Appellant has availed these services in relation to purchase of foreign currency used by the employees of the company during their overseas visit to provide the output services exported. The said overseas visit are to the customers/ branches/ subsidiaries of the Appellant purely in relation to official work. Accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s market value and used for the provision of services rendered. (xii) Customs House Agent Services - disputed amount ₹ 22,857 The said services have been availed in relation to procurement of imported equipment which are used for provision of output services exported. The said equipment are primarily the I. T. equipment which is used in the provision of the output services by the Appellant. Accordingly, custom house agent's services are essential for procurement of I.T. equipment used in providing output services. (xiii) Commercial training and coaching services - disputed amount ₹ 20,066 These services have been availed by the Appellant in relation to certain !training programs attended by its employees. The said training programs are essential to understand various commercial/ business aspects which are used by the Appellant for the purpose of rendering the services. Accordingly, these services are used in relation to the provision of output services of the Appellant. (xiv) General Insurance Services - disputed amount ₹ 19,004 The said services have been availed in relation to taking insurance of the assets of the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the output services exported by the Appellant. (xviii) Video Tape Production Agency Services- The said services have been availed by the company in relation to video recording of certain events during the business meetings, seminars etc. of the company. Accordingly, these services are used in relation to the output services provided by the Appellant. (xix) Technical Inspection and Certification Services These services have been procured for inspection and testing of earthing wiring of the business premises. The said services are essential to maintain the proper working condition of various equipments used by the employees. Accordingly, these services are essentially required and used in relation to the output services provided by the Appellant. (xx) Photography services- The said services have been rendered by the vendor during the business events organised by the company in relation to photography services so that the important moments of the events can be captured for further reference and business promotion. Accordingly, these services are used in relation to the output services provided by the Appellant. (xxi) Manpower recruitment an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard the rejection of claim in respect of some services which the ld. Commissioner constituted as sale of goods, on careful consideration of the nature of service I find that payment made towards sale of diesel is nothing but reimbursement towards receipt of services of operating DG set for uninterrupted supply of power for carrying out output service, therefore even though the reimbursement toward supply of diesel, it is related to supply of service to operate DG set. Vendor also paid service tax on such charges. In case of transaction alleged to have made as sale of text article, I find that this payment is towards preparation of various study material used for purpose of training needs of the employee which are required to provide out put service of the appellant. Therefore credit in respect of services or preparation of study material is admissible. 14. As regard erection, commission and installation, Ld. Commissioner denied the refund on the ground that service cannot be identified form the invoices, I find that appellant had explained to the ld. Commissioner(Appeals) that these services were availed in relation to installation/re-erection of the office unit of the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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