2018 (12) TMI 859 – CESTAT KOLKATA – TMI – Refund claim – export of services – 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 – Rule 5 of the Cenvat Rules read with the provisions of Notification No. 27/2012- CE(NT) dated 18-06-2012 – Held 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.
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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.
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In some cases, the Cenvat Credit has been disallowed o
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the appellant availed various input services, defined under Rule 2(l) of the Cenvat Credit Rules, 2004 (hereafter referred to as the Cenvat Rules , in short). The services provided by them being qualified as Export of Service , as defined under Rule 6A of the Service Tax Rules, 1994 (hereafter referred to as the Rules , in short), the appellant filed Refund Claim in terms of Rule 5 of the Cenvat Rules read with the provisions of Notification No. 27/2012- CE(NT) dated 18-06-2012 for the quarterly period from October, 2012 to December, 2012, October, 2014 to December, 2014 and January, 2015 to March, 2015. 3. The grounds for disallowance of credit in respect of all the three adjudication Orders as well as Orders-in-Appeal are summarized in the following Table:- Sl. Name of the Service Provider Nature of Service Inadmissible Cenvat Credit Reason for disallowance Remarks 1. Burman Bohra & Associates Deloittee Haskins & Sales LLP Chartered Accountants Service Rs.2,71,222/ No relatio
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FUND/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. Refer 2017 (52) STR 497 (Tri.-All.) – CCE&ST, Noida vs. Samsung India Electronics Pvt. Ltd. 4. Bodyline Sports (ST/75551/18) Maintenance & Repair Service Rs.1,730/- No relationship or nexus Refer 2014 (33) STR 96 (Tri.-Del.) – KPMG vs. CCE, New Delhi 5. ABS Enterprise (ST/75550/18) Maintenance & Repair Service Rs.481.88 Invoice not submitted Copy of the Invoice is enclosed at page 53 of Appeal No. ST/75550/2018. 6. Godrej & Boyce Mfg. Co. Ltd. (ST/75549/18) Maintenance & Repair Service Rs.14,362/- Credit Taken on Proforma Invoice Once Service Tax has been found to be paid, merely due to the name shown as Proforma Invoice cannot be the sufficient ground for denial of refund of input service credit. Credit taken on Debit Note has been allowed. Refer 2014 (34) STR 66 (Tri.-Ahmd.) – CCE&C, Daman vs. Jalaram Plastic Pack 7. AT&T Communic
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6/- has been sought to be disallowed towards credit in respect of out of pocket expenses. But entire credit of ₹ 1,774/- has come to be disallowed by mistake. 10. Deloitte Touche Toumatsu India Pvt. Ltd. Management Consultants (ST/75550/18) Rs.54,631/- No relationship or nexus Refer 2014 (33) STR 96 (Tri.-Del.) – KPMG vs. CCE, New Delhi 11. UCS Corporate Services Pvt. Ltd. Management Consultants (ST/75550/18) Rs.2,348/- No reason No reasons provided. Held as eligible input service. in 2014 (33) STR 96 (Tri.-Del.) – KPMG vs. CCE, New Delhi. 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. 12. First Advantage Pvt. Ltd. Management Consultants (ST/75550/18) Rs.4,713.20 No reason No reasons provided. But held as eligible input service in 2014 (33) STR 96 (Tri.- Del.) – KPMG vs. CCE, New Delhi. 13 R.S. Software India Ltd. Manpower Recruitment or Supply Agency s Service Rs.76,078.76 (ST/75550/18) No
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inadmissible or ineligible, while granting the refund of the same credit. 17. Praxis Softech Solutions Pvt. Ltd. (ST/75549/18) Manpower Recruitment or Supply Agency s Service Rs.6,23,633/- Could not be correlated without description The nature of service is clear from the Invoice itself (Sample invoice at page 47 of the appeal against the appeal Order No.297/STI/ Kol/2017dated 31-10-2017) 18. Prime Online Pvt. Ltd. (ST/75549/18) Manpower Recruitment or Supply Agency s Service Rs.8,239/- Could not be correlated without description 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. 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) 19. RS Software (India) Pvt. Ltd. (ST/75549/18) Manpower Recruitment or Supply Agency s Service Rs.2,77,288/- Could not be correlated without description The nature o
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as inadmissible or ineligible, while granting the refund of the same credit. It is wrong to refuse refund of credit lawfully taken on the ground of inadmissibility. In support of his contention, he has relied upon the decision of the Tribunal in the case of Target Sourcing Service India (P) Ltd. Vs. Commr. of Central Excise & S.Tax, Delhi II reported in 2017 (52) S.T.R. 277 (Tri.-Del.). 4.2 The ld.Advocate has also brought to the notice of the Bench that the ld adjudicating authority has contravened the principles of natural justice by denying the credit without granting any opportunity of personal hearing in respect of the Appeal Nos.ST/75550/18 & 75551/18. In this regard, reliance is placed during the course of hearing on the following reported decisions:- (i) 2015-TIOL-1044-CESTAT-DEL – Serco Global Services Pvt. Ltd. vs. CCE, Delhi-III; ST – Refund – Even if the CENVAT credit was considered to have been taken wrongly, disallowing the same requires quasi-judicial process inv
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them an opportunity of producing the relevant material and a reasoned order shall thereafter be passed by the authority and uninfluenced by the earlier action. All contentions on merits of the claim of refund are kept open. The petitions are allowed. No costs. Our order and directions does not mean that we have adjudicated the claim of refund and that the authorities are oblige to grant it. [Emphasis supplied] (ii)2017 (52) S.T.R. 3 (S.C.)-UNION OF INDIA vs. HANIL ERA TEXTILES LTD. 5. The ld.D.R. appearing on behalf of the Revenue, has reiterated the findings of the lower authorities. 6. Heard both sides and perused the appeal records. 7. I find that the transaction undertaken by the appellants qualified to be export of service , as defined under Rule 6A of the Service Tax Rules, 1994. Since they were not in a position to utilize the accumulated Cenvat Credit, refund claim has been filed in terms of Rule 5 of Cenvat Credit Rules, 2004 read with the provisions of Notification No.27/201
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