M/s Lexmark International (India) Pvt. Ltd. Versus Commr. of CGST & Central Excise, Kolkata North
Service Tax
2018 (12) TMI 859 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 10-5-2018
S.T. Appeal No.75549-75551/2018 – FO/76547-76549/2018
Service Tax
SHRI P. K. CHOUDHARY, JUDICIAL MEMBER
Shri S. P. Majumder, Adv. for the Appellant (s)
Shri K. Choudhary, Supdt.(A.R.) for the Revenue
ORDER
Per Shri P. K. Choudhary :
The present appeals have been filed by the appellants against the Orders-in-Appeal Nos.297,296 & 299/S.Tax I/Kol/2017 all dated 31.10.2017 passed by Commr. of CGST & Central Excise (Appeals I), Kolkata, whereby he has upheld the respective Orders-in-Original and rejected the Appeals there against filed by the appellant.
2. Briefly stated the facts of the case are that the appellants are engaged in exporting taxable output service namely, 'Information Technology Software Service'. For providing the service, exported outside the country, the a
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relationship or nexus
It is wrong to hold that Chartered Accountants Service used has no relationship or nexus in providing the exported output service. Refund has been allowed for the subsequent period vide Order-in-Original No. 19/REFUND/BDN/CGST&CX/ KOL-NORTH/17-18 dated 13-02-2018 and Order-in- Original No. 33/REFUND/STI/ ND/KOL/17-18 dated 13-05-2017.
2.
American Chamber of Commerce in India
Membership of Club
Rs.8,652/- (ST/75551/18)
Meant for individual's membership
It is the corporate club membership. Eligible input service. Refer 2016 (44) STR 129 (Tri.-Hyd.) – Xilinx India Technology Services; 2013 (31) STR 68 (Tri.-Del.) – BCH Electric Ltd. vs. CCE, Delhi-IV; 2017 (4) GSTL 188 (Tri.- Hyd.) – Vinayak Steels Ltd. vs. CCE,C&ST, Hyderabad-II
3.
AMP & Company DHL Express (India) Pvt. Ltd. Fedex Express Transportation and Supply Chain Service
Courier Service
Rs.2,812.86
No Relationship or nexus
Refund has been allowed for the subsequent period vide Order-in-Original
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on Services India Pvt. Ltd.
Internet Communication (ST/75549/18)
Rs.1,01,186/-
Invoice issued for other business premises
From the invoice placed at page 42 & 43 of the Appeal No. ST/75549/2018, it appears that Invoice for the Kolkata business premises.
8.
DLF Info City Developers (Kolkata) Ltd. (ST/75549/18)
Renting of Immovable Property
Rs.10,569/-
No relationship or nexus
Admissible input credit. Held as eligible input service. in 2016 (44) STR 129 (Tri.-Hyd.) – Xilinx India Technology Services (P) Ltd. vs. CCE&ST, Hyderabad-IV; Refund has been allowed for the subsequent period vide Order-in-Original No. 19/REFUND/BDN/ CGST&CX/KOL-NORTH/ 17-18 dated 13-02-2018 and Order-in-Original No. 33/REFUND/ STI/ ND/KOL/17-18 dated 13-05-2017.
9.
Kochar & Co. (ST/75550/18)
Legal Consultancy Service
Rs.1,774/-
Service Tax Rs. 6/- on out of pocket expenses Rs. 50/- held as inadmissible, but has disallowed entire amount of Rs. 1,774/-
Eligible input service. Rs. 6/- has been sought
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son Credit has to be allowed since eligible input service.
14.
Info Edge India Ltd.
Manpower Recruitment or Supply Agency's
Rs.26,080/- (ST/75550/18)
No reason
Credit has to be allowed since eligible input service.
15.
Praxis Softech Solutions Pvt. Ltd.
Manpower Recruitment or Supply Agency's Service
Rs.9,413.20 (ST/75551/18)
Credit taken on Debit Note
Credit taken on Debit Note cannot be denied. Refer 2014 (34) STR 66 (Tri.- Ahmd.) – CCE&C, Daman vs. Jalaram Plastic Pack
16.
Praxis Softech Solutions Pvt. Ltd.
Manpower Recruitment or Supply Agency's Service
Rs.57,775.80 (ST/75550/18)
Invoice unsigned
Computer generated invoice and thus not signed. Once service tax has been paid on the basis of such invoices without any objection at the end of the service provider this cannot be the ground for denying refund. Moreover, once credit towards input service has been allowed to be taken without any objection from the side of the Department, it is not permissible to h
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ithout description
The nature of service is clear from the Invoice itself (Sample invoice at page 49 of the appeal against the appeal Order No.297/STI/ Kol/2017dated 31-10-2017)
20.
Unicom Training & Seminars Pvt. Ltd. (ST/75549/18)
Commercial Training and Coaching
Rs.35,208/-
No relationship or nexus
Workshop for training program conducted for “Cloud Computing Using AWS”, a software. The training is included in the definition of 'input service' under Rule 2(l) of Cenvat Rules.
21.
e Dommen Systems Pvt. Ltd. (ST/75549/18)
Commercial Training and Coaching
Rs.9,556/-
No relationship or nexus
Training fees charged for two days program conducted for software technology. The training is included in the definition of 'input service' under Rule 2(l) of Cenvat Rules.
4.1 The ld.Counsel appearing on behalf of the appellants submitted that as per the series of decisions once credit towards input service has been allowed to be taken without any objection from the side of the Departm
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e same requires quasi-judicial process involving issuance of SCN followed by a speaking order: CESTAT.
(ii) 2017 (51) S.T.R. 467 (Bom.)-GENERAL MILLS INDIA PVT. LTD. vs. UNION OF INDIA
“4. On earlier occasions the Deputy Commissioner Service Tax, Division-VI, Mumbai-II and who has passed the impugned order Mr. S.P. Pradhan has been pulled up by this Court. He had not implemented and carried out the orders and directions of this Court which were specific and clear. We do not see how the approach of the officer in this case can be countenanced even in the present matter. When he is aware of the requirement of giving a personal hearing before a adverse order is passed, then, the impugned order shows either a uncalled for or undue enthusiasm which could safely be termed as arrogance as well. We do not approve of such a hasty course and, therefore, proceed to quash and set aside the impugned order. The refund claim of the petitioners shall be now decided in accordance with law meaning th
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04 read with the provisions of Notification No.27/2012 CE (NT) dated 18.06.2012. The present dispute is on disallowance of such refund claim under various heads on the ground of lack of nexus/co-relation between the input service and the out-put service. I find that in the present case, some of the input services do not qualify the definition of input services in terms of Rule 2 (e) of the Cenvat Credit Rules, 2004. I find that the Tribunal in various decisions has consistently held that there cannot be two different yardsticks, one for permitting credit and the other for eligibility for granting rebate. Whatever credit has been permitted to be taken, the same are permitted to be utilized and when the same is not possible, there is provision for grant of refund or rebate. Without questioning the credit taken, the eligibility to rebate cannot be questioned. I find that in some cases, the Cenvat Credit has been disallowed on the ground that the invoices are un-signed, but it is not in di
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