TMI Blog2022 (8) TMI 1105X X X X Extracts X X X X X X X X Extracts X X X X ..... e used for providing output service, for the period prior to 01.04.2011 - the rejection of refund claims for all the services availed by the appellant prior to 01.04.2011, on the allegation that they do not qualify as input service , cannot be justified. After 01.04.2011, a major amendment was brought forth in the definition of input service whereby certain services have been excluded. Services in the nature of Outdoor Catering Service, Rent-a-Cab Service, Health Insurance, Leave and Home Travel Concession, etc., which are availed primarily for the personal use of an employee, are excluded from the purview of input service - The appellant is required to furnish details in respect of the purpose and places of travel along with evidence regarding the order given by the appellant-company to undertake the travel, etc. As the appellant has failed to produce such evidence, we cannot conclude that the Travel Agent Services were availed for providing output services. The appellant has not furnished any break-up with regard to the various services that are bundled under the category of Business Support Services. The credit under this head, for the categories of service explained by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of dispute for the various grounds for rejection of the refund claim overlap with the period for which the dispute is settled by the appellant under the Sabka Vishwas Scheme, 2019. The matter requires to be remanded to the Original Authority for re-considering/re-processing the refund claims. In such remand proceedings, the Original Authority shall look into the discussions made hereinabove in this order with regard to the various grounds of rejection - Appeal allowed by way of remand. - Service Tax Appeal No. 41130-41140/2015-DB - FINAL ORDER NOs. 40299-40309 / 2022 - Dated:- 24-8-2022 - MRS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) AND MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri K. Sivarajan, Chartered Accountant for the Appellant Smt. Sridevi Taritla, Authorized Representative for the Respondent ORDER The issue involved in all these appeals being the same, they were heard together and are being disposed of by this common order. 2. Brief facts of the case are that the appellant, M/s. Verizon Data Services India Pvt. Ltd., is engaged in providing taxable services in the nature of Commercial Training and Coaching, Erection Commission and Installation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . July 2011 to September 2011 ST/41139/2015 3,93,680/- Total 1,85,85,295/- 3.1.2 The Learned Consultant for the appellant submitted that from the above, it can be seen that the period involved in the appeals at Serial Nos. 10 and 11 of the above table are after 01.04.2011 and the other appeals pertain to refund claims for the period prior to 01.04.2011. 3.2 Learned Consultant appearing for the appellant submitted that the Department has sought to deny the credit by alleging that the services do not qualify as input service as per the definition under Rule 2(l) of the CENVAT Credit Rules, 2004. The authorities below have denied the eligibility of credit by applying the decision in the case of M/s. Maruti Suzuki Ltd. v. Commissioner of Central Excise, Delhi-III [2009 (240) E.L.T. 0641 (S.C.)]. That the said decision analysed the issue with regard to inputs and not input services. In the case of Commissioner of C.Ex., Nagpur v. M/s. Ultratech Cement Ltd. [2010 (260) E.L.T. 369 (Bom.)] and KPMG v. Commissioner of Central Excise, New Delhi [2014 (33) S.T.R. 96 (Tri. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re eligible for credit. (c) Insurance Service: The appellant had availed insurance policies in the nature of Director s and Officer s Liability Policy, Group Gratuity Risk Premium, Group Personal Accident Policy, Group Mediclaim Policy, Group Term Life Insurance Policy, Business Guard Policy and Property Insurance and Marine Import Policy. These insurance services were availed by the appellant to indemnify the risk that may be caused in various incidents attached to the policy. The Learned Consultant for the appellant submitted that after 01.04.2011, the appellant has not availed any credit on insurance services. (d) Rent-a-Cab Service: These services were used for transportation of employees by cab. The employees who work late in the night are required to be transported to their residences and therefore, these services were used for providing output services. Learned Consultant for the appellant added that after 01.04.2011, the appellant has not availed any credit on Rent-a-Cab Services. (e) Maintenance of Building: The Learned Consultant for the appellant explained that the services of vendors having specialized technical expertise and manpower for providing necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led towards employees travel for business related activities and were availed even after 01.04.2011. (l) Supply of Tangible Goods : Learned Consultant for the appellant submitted that the appellant had availed such services for hiring audio-video equipment and printers. That the same were necessary for various events as well as the business of the company. (m) Real Estate Agent Service: Such services were availed for identification of premises for conduct of business. That the appellant had to find out new places suitable for conducting business and that these services were availed in order to identify the required premises. (n) Consulting Engineer Service: These services were used by the appellant towards real estate consultancy services received from M/s. Cushman Wakefield (India) Pvt. Ltd. and that such services are essential for providing the output service. (o) Manpower Recruitment Agency Carpet Shampooing / Maintenance: These services relate to carpet shampooing / maintenance services provided at the office premises of the appellant. (p) Technical Inspection and Certification Service: Learned Consultant for the appellant submitted that the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Such services were availed from M/s. Dell India Pvt. Ltd. for providing output services. (x) Management Maintenance or Repair Service: Learned Consultant for the appellant submitted that an amount of Rs.7,963/- under the category of Management, Maintenance and Repair Service has been disallowed, for which breakup of disallowance was not provided to the appellant. 3.4.1 Credit taken subsequent to last date of export: The second ground on which the refund was rejected is that the appellant has availed credit subsequent to the last date of export. In this regard, it is submitted by the Learned Consultant that the authorities below have rejected an amount of Rs.23,93,873/- pertaining to the period from April 2010 to June 2010 and January 2011 to March 2011, alleging that the credit has been taken after the last date of export and that there is no one-to-one correlation. He adverted to Notification No. 05/2006-C.E.(N.T.) dated 14.03.2006 read with Rule 5 of the CENVAT Credit Rules, 2004 to argue that neither the Notification nor the Rule bars credit availment after the last date of export. In fact, the Rule does not specify the time period in a month or quarter for which such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation to be total CENVAT Credit taken on input services during the given period , but however, have applied the net credit for computation of the eligible refund, which is erroneous. He relied upon the decision in the cases of Commissioner of Service Tax, Mumbai-I v. M/s. Global Markets Centre Pvt. Ltd. [2015-TIOL-242-CESTAT-MUM] and Commissioner of C.G.S.T., Mumbai v. M/s. Morgan Stanley Investment Management Pvt. Ltd. [2019-TIOL-977-CESTAT-MUM] to argue that the credit utilized towards domestic Service Tax liability need not be deducted from the total credit taken for computation of the eligible refund claim. 3.7 Non-mentioning of Service Tax registration and Chartered Certificate not produced: The Learned Consultant for the appellant submitted that for the reason that the Service Tax registration is not mentioned and the correlating Chartered Accountant Certificate has not been produced, the amount of Rs.9,280/- has been rejected by the authorities below. 3.8 Invoices not produced: It is submitted by the Learned Consultant that an amount of Rs.13,147/- has been rejected for the reason that the credit is ineligible as the invoices have not been produced by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted to the position and agreed with the allegations in the Show Cause Notice. In continuation of this argument, he relied upon the decision in the case of M/s. Bosch Chassis Systems India Ltd. v. Commissioner of Central Excise, Delhi-III, Gurgaon reported in 2008 (232) E.L.T. 622 (Tribunal LB). It is argued by him that even if the appellant has opted for the Sabka Vishwas Scheme and paid up the liability as per the scheme, it does not mean that the appellant has admitted to the allegations and therefore, the refund ought to be granted. 3.12.3 He also drew support from Sub-section 124(1) of the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 [Chapter V of the Finance Act, 2019] to submit that the appellant had availed the benefit of the scheme under this provision as settlement of its tax dues. That as per Section 127(1)(6), an appeal shall be deemed to be withdrawn on final settlement of all dues. That Discharge Certificate is issued in terms of Section 129(1) and the said Discharge Certificate would mean that the liability for payment of tax dues has been discharged. That the scheme would not take away the eligibility of the appellant for refund under Rule 5 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. It is an undisputed fact that the appellant is a 100% Export Oriented Unit and is under the Software Technology Park (STP) Scheme. The refund claims have been filed by the appellant under Rule 5 of the CENVAT Credit Rules, 2004 read with Notification No. 05/2006-C.E.(N.T.) dated 14.03.2006. 7.1 The first ground on which refund has been rejected by the authorities below is that the services availed by the appellant do not qualify as input service as per Rule 2(l) of the CENVAT Credit Rules, 2004. It is seen that the period involved in all the appeals, except Service Tax Appeal Nos. 41132 and 41139 of 2015, are prior to 01.04.2011. Prior to 01.04.2011, the definition of input service had a wide ambit as it included the words activities relating to business . Almost all the services availed by the appellant under this category, were used by the appellant-company for its business activities. In the decisions of various fora, it has been held that almost all the said services would fall within the definition of input service when they are used for providing output service, for the period prior to 01.04.2011. The appellant has relied on the decisions in the cases of Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e such evidence, we cannot conclude that the Travel Agent Services were availed for providing output services. We are of the view that such services are not eligible for credit after 01.04.2011. 7.2.4 The appellant has also availed Business Support Services to obtain updates on forex market from M/s. Green Back Forex Services Pvt. Ltd. It is seen that Business Support Services were also availed for printing of stationery and for disbursing awards to employees. We cannot consider the disbursement of awards to employees as an eligible input service after 01.04.2011. The appellant has not furnished any break-up with regard to the various services that are bundled under the category of Business Support Services. In our view, the credit under this head, for the categories of service explained by the Learned Consultant for the appellant, are not eligible for credit after 01.04.2011. 8. The second ground on which the refund has been rejected is that the appellant has availed the credit subsequent to the last date of export. The main discussion made by the authorities below is that there is no one-to-one correlation with regard to input service and output service. We are of the vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been mentioned in the invoice and that the appellant has not produced any Chartered Accountant certificate to this effect. In this regard, we are of the opinion that if the appellant is able to furnish sufficient evidence to prove the payment of Service Tax, the amount of Rs.9,280/- rejected on this ground, should be considered. 13. It is seen that amounts of Rs.13,147/- and Rs.52/- have been rejected for the reasons of invoices were not produced and excess credit taken respectively. We are of the view that the appellant is not eligible for refund in the case where invoices have not been produced; so also, in respect of excess credit taken, the refund is not eligible. 14. Refund has been rejected to the tune of Rs.50,730/- on the ground that Service Tax was not charged by the service provider in the invoices. If the appellant has not paid Service Tax, there is no question of granting any refund. The rejection of refund on this ground, in our view, is required to be upheld. 15.1 A major argument put forward by the Learned Consultant for the appellant is that for the periods covered in Service Tax Appeal Nos. 41133, 41134, 41136 and 41140 of 2015, though the cre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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