TMI Blog2018 (6) TMI 1011X X X X Extracts X X X X X X X X Extracts X X X X ..... uded in relation to construction of building of the output service provider, however in the present case works contract service were not used for construction or execution of works contract of building or civil structure or for laying foundation or making structure for support of capital goods but it is used in maintenance related work which is clear from the invoice therefore works contract service is also not excluded in the present case - refund allowed. Refund for the period April to September, 2012 filed for six months - contravention of condition of N/N. 27/12-CE(N.T.) dated 18- 6-2012 - Held that:- The restriction under notification provided to avoid multiple claims in particular quarters therefore the claim should be filed quarterly basis but if the claim is filed after six months for two quarters there is no violation of any condition. Only condition which bar the refund is refund should be filed within the overall period of one year from the relevant date. If that be so refund is well within the time limit and same should be allowed - refund allowed. Refund claim - denial on the ground that appellant had not shown debit of refund amount in Cenvat account at the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed therefore rejection in respect of these invoices was made twice which is an arithmetical error, same needs to be corrected after verifying records - Similar type of error occurred in respect of rejection of refund of ₹ 2,98,987/- for the period April to June, 2013. As per the claim of the appellant this amount was rejected twice in order-in-original this also being matter of fact needs to be verified by the adjudicating authority - matter on remand. Refund claim - denial on the ground that Incorrect formula was applied for computation of an amount - Held that:- As per the definition of net cenvat credit availed is total cenvat credit availed during the period and if there is any utilisation of credit for domestic clearances, the same need not to be deducted, total cenvat credit for the purpose of formula to be taken. Therefore lower authority is absolutely wrong as they have mis-interpreted the term ‘net Cenvat credit availed’, therefore on this count refund could not have been rejected - refund allowed. Refund claim - denial on the ground that Supporting documents not submitted - Held that:- The appellant have submitted documents which the adjudicating authority may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... astogi, Ld. Counsel for the appellant submits that the department has denied the refund claim in respect of Cenvat credit availed on various inputs service under the category of accommodation, courier, renting of immovable property, works contract, goods transport agency services, general insurance service, club or association services, telecommunication services, business auxiliary services, management and business consultancy series, copyright services, air travel, business support services, convention and photography services, sponsorship, training, banking and other financial service, repairs and maintenance service and event management services. The grounds cited for such disallowance is that the input services are covered under the ambit of activities relating to business which was deleted from the definition of input service under Rule 2(l) of Cenvat Credit Rules, 2004 vide Notification No. 3/2011-CE(N.T.) dated 1 March 2011 with effect from 1 April, 2011. Accordingly, the OIA held that the disputed services do not have any nexus with the output services of the appellant. The definition of input service under Rule 2(l) of Cenvat credit Rules, 2004 begins with the term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present instance, the Appellant submits that the out-of-pocket expenses have been paid to JLL on account of various types of support services such as manpower, repairs and maintenance availed from them. A copy of the contract entered into with JLL is enclosed is clearly identifiable in this at page 224 of the paper-book (clause 5). The contract clearly stipulates payment of OPEs incurred by JLL in relation to services rendered by them. 5. Regarding the issue that invoice of Cenvat credit bearing wrong address, he submits that Rule 9 of the CENVAT Credit Rules, 2004 prescribes the documents on the basis of which credit can be availed. Rule 9 specifies that CENVAT credit can be taken on the basis of an invoice issued by the service provider. The requirements of an invoice are mentioned under Rule 4A of the Service Tax Rules, 1994. Neither Rule 9, nor Rule 4A require that the address mentioned on the invoice should be the registered address of the assessee. This position has been upheld in the case of GE India Exports Private Limited [(2016) 71 taxmann. Additionally, this is merely a procedural lapse and substantive benefits cannot be denied on these grounds. Further, the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his regard in para 9 of the OIA. However, the Commissioner(Appeals-II) has not included this amount in the amount sanctioned (INR 61,42,834/-) in para 11 of the OIO. During the period July to September 2013 (010 no. AC/R-210/Div-V/MU/14-15, OIA no. PK/215/ME/2017, appeal no. ST/85487/2018-(D13)), the Appellant had challenged the rejection of an amount of INR 1,63,329/- on account of such amount being rejected twice in the Oder. The Commissioner (Appeals-II) has accepted this contention in para 9 of the impugned OIA and has reduced this amount from the total amount of rejection. However, this amount was not included in the sanctioned amount in the OIA. 8. During the period April to June 2014 (0I0 no. 554-R/CYM/2015-16, OIA no. PK/214/ME/2017, appeal no. ST/85488/2018-(DB)), the Appellant had challenged the rejection of an amount of INR 4,06,829/- on account of such amount being rejected twice in the 010. The Commissioner (Appeals-II) has accepted this contention in para 10 of the impugned OIA and has reduced this amount from the total amount of rejection. However, this amount was not included in the sanctioned amount in the OIA. 9. There is an issue that during the period Oct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion electrical equipment / electronic devices (Services are not used for construction or execution of works contract for building or civil structure or any part thereof or for laying foundation or support structure of capital goods; Specifically covered under renovation and repair services) 5. Business Auxiliary Services - Consultant fees for actuarial valuation required under AS 15 and for compliance with labour laws (Specifically covered under accounting or Legal Services ) 6. Training services - Used for employee training programmes (Specifically covered under coaching and training services) 7. Manpower supply services - For salary reimbursement of expats from Bank of America, Mauritius (Specifically covered under recruitment and quality control ) 8. Repair services - Regular servicing and maintenance of office premises (Specifically covered under renovation or repairs of premises ) 9. Management Consultancy - For consultancy regarding legal compliance and merger with group company (Specifically covered under legal services ) Other services are as follows: 1. Courier services 2. Accommodation services 3. Club and association services 4. GT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the overall period of one year from the relevant date. If that be so refund is well within the time limit and same should be allowed. 18. Refund claim was rejected on the ground that appellant for the period April to September, 2012 have not shown debit of refund amount in Cenvat account at the time of filing the refund claim. However appellant have subsequently, debited the said amount in their Cenvat account and debit entry also shown in ST-3 returns. In this circumstances it cannot be said that the appellant have not debited the amount. The purpose of debiting amount is that the said amount is being refunded therefore it is not mandatory that amount should be debited immediately at the time of filing refund. The only obligation on the claimant is that that before sanction of refund if the refund amount is debited in the Cenvat account refund should be granted. In the present case even if the reversal is not made the adjudicating authority could have very well directed to the appellant to first reverse the credit and then refund could have been processed. However, in the present case appellant have admittedly debited the amount in their Cenvat account, refund on this coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has applied percentage on the net cenvat credit during this period after deducting amount of credit utilised for domestic liability and accordingly credit sought to be denied, which amount to ₹ 94,267/-. As per the definition of net cenvat credit availed is total cenvat credit availed during the period and if there is any utilisation of credit for domestic clearances, the same need not to be deducted, total cenvat credit for the purpose of formula to be taken. Therefore lower authority is absolutely wrong as they have mis-interpreted the term net Cenvat credit availed , therefore on this count refund could not have been rejected. 24. As regard the issue of non submission of documents, appellant have submitted documents which the adjudicating authority may verify and decide. 25. It was also pointed out by the appellant that in respect of rejection of refund of ₹ 2,27,436/- for the period Oct to Dec, 2012 OIO and OIA have not given any reason therefore this portion of the refund needs relook and to be decided a fresh. 26. Since our above discussion is subject to verification by the adjudicating authority, we allow the appeals by way of remand to the adjudicating ..... 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