TMI Blog2019 (1) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... that such services were in fact, required for smooth business transactions of exportation of service. Further, it has also been clarified that since those offices run on 24x7 basis, it is the necessary pre-requisite that the employer should provide certain facilitates in the form of services to its employees to ensure that the output service is provided efficiently; and accordingly, it was clarified that the services like outdoor catering or rent-a-cab to pick-up and dropping of the employees, would be eligible for credit - refund cannot be denied holding that there is no nexus between those services and the output service exported by the appellant. Time limitation - rejection on the ground that issuance of let export order/date of shipment should be considered as the relevant date for the purpose of computation of limitation period under Section 11B of the Central Excise Act, 1994 and not date of receipt of FIRC, as claimed by the appellant - Held that:- The issue arising out of the present dispute is no more res integra, in view of the decision of this Tribunal in the case of Bechtel India Pvt. Ltd. vs. Commissioner of Central Excise, Delhi, [2013 (7) TMI 490 - CESTAT NEW D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the output service, the appellant was not in a position to utilize the Cenvat credit available in its books of accounts. Accordingly, for the disputed period, the appellant had filed the refund application before the jurisdictional service tax authorities, claiming refund of accumulated Cenvat credit, in terms of Rule 5 of the Cenvat Credit Rules, 2004 read with the notifications issued there under. The refund applications filed by the applicant were partly allowed by the refund sanctioning authority. The remaining part of the refund claimed amount was rejected on the ground that the input services have not gone for consumption and have no nexus with the output service; that invoices are greater than one year old; that address was not matching as per ST 2 returns; that invoices were not submitted and Cenvat credit availed on the basis of credit notes. Feeling aggrieved with the adjudication orders in rejecting the refund claims, the appellant had filed appeals before the Ld. Commissioner (Appeals), which were disposed of by the impugned order dated 10.10.2017. In the impugned order, the Ld. Commissioner (Appeals) has allowed the refund benefit in respect of some of the servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder. 5. Heard both sides and perused the case records. 6. The chart enclosed to the written note filed by the appellant, explaining the nexus between the disputed input services and the output services exported by it is summarized herein below: Sr No. Category of service Nexus / Justification 1. Renting of Immovable Property Business operations i.e. export of services are operated from premises obtained under lease rent. Renting of immovable property services serves as a pre-requisite service, without which Appellant will not be able to provide its output services. 2. Real Estate Agency Services The appellant had procured housekeeping/facility management services from CBRC South Asia Private Ltd. ('vendor'). However, inadvertently the vendor had mentioned the category of service on the invoice as 'real estate agent's services'. The invoice provided by the vendor mentioned the categories of management, maintenance and repair services, cleaning services as well as business auxiliary services, in ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... change services were not engaged by the Appellant. 7. Accommodation service and Services by hotels and guesthouse The Appellant provides services to its client located outside India. Therefore, many a times it is essential for employees of the Appellant to travel outside India for business purposes. In this respect, the Appellant humbly submits that it has availed services for the accommodation arrangement of its employee when they travel outside India on business visits. 8. General Insurance Services The Appellant has availed insurance policy to secure its immovable and movable properties from fire and burglary. Further, international business travel policy has been taken for the employees who travel across the globe for rendering output services. 9. Mandap Keeper s Service The Appellant has availed the mandap keeper s services to conduct various official or business functions. Therefore, these services are covered under the activities relating to business and qualify as input service as defined under CENVAT Rules. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by that the nexus between the input service and the output service either directly or indirectly have to be established by the claimant. In other words, the nexus between both the services have to be interpreted in a harmonious manner, so that the basic purpose and intent behind the legislation is not defeated. In order to ascertain, whether a particular service has nexus with the output service, the test to be applied is that in absence of use/utilization of such service, what will be the effect on ultimate exportation of service. In absence of use of such input service, if it adversely impacts the quality and efficiency of the exported output service, then such input service should qualify for the benefit of refund envisaged under Rule 5 of the rules. In this case, the nature of use of the disputed services for the purpose of exportation of output service, as explained by the appellant, clearly shows that those services have nexus with the output service and that such services were in fact, required for smooth business transactions of exportation of service. In this context, the Tax Research Unit of CBEC vide Circular No. 120/01/2010-ST dated 19.01.2010 has clarified that renting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermissible and the credit amount has already been reversed by the appellant from the Cenvat account. Since the appellant concedes that it is not entitled for such credit, I am not expressing any opinion on entitlement for such credit. Accordingly, the impugned order sustains, so far as it denied the Cenvat credit on such ground. 7.4 As regards rejection of refund benefit on the ground of non-submission of relevant invoices, the appellant stated that the relevant documents/invoices are available with it and can be produced before the original authority for necessary verification. Since the appellant concedes that the invoices are available with it, I am of the view that the matter can be remanded to the original authority for verification of the disputed invoices. 8. In view of the foregoing discussions, the appeals are disposed of in following terms: (a) Nexus between the input services and output services were established and thus, the appellant should be entitled for refund of service tax paid on the disputed services; (b) Refund claim is not barred by limitation of time; (c) Refund benefit is not available on the Cenvat credit availed on the basis of credit notes; ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
