2018 (12) TMI 1483 – CESTAT MUMBAI – TMI – Refund claim – input services – rent a cab service – membership of club or association service – real estate agency service (visa) – management, maintenance repair services – export of services – Rule 5 of the Cenvat Credit Rules – Circular dated 19.01.2010 vide 120/01/2010-S.T. – Held that:- The order of the Commissioner (Appeals) would have been sustained if there not been a clarificatory circular issued on 19.01.2010 vide 120/01/2010-S.T. by the Department of Revenue. The circular clearly indicates that conjoint reading of the Cenvat Credit Rules is to be made with Notification no. 5/2006-CX(NT) to broaden the meaning of input service so as to cover its relationship to output service. The said circular also has attempted a liberal approach in stating that example of services like outdoor catering, rent a cab for pick up and drop of employees to office etc. are input services, without reference to if such pick up is from office or from airp
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lai, Advocate for the appellant Shri MP. Damle, AC (AR) for the respondent ORDER Rejection of refund claims made against cenvat credit availed on input services by appellant company engaged solely in export of investment advisory services on the ground of inadmissible credit concerning rent a cab service, membership of club or association service, real estate agency service (visa), management, maintenance repair services by the Commissioner (Appeals) is challenged in this appeal. 2. Factual backdrop of the case is that appellant is investment banking forum having tie up with KKR group had entered into consulting service agreement with a Mauritius unit and it had been providing advisory service in connection with potential investment members in India and the said services qualifies as export of service as per Rule 4 of the export of Service 2005. All services provided by the appellant were recorded as export for which appellant did not utilise the cenvat credit available to it on its in
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6146-86147/18 dated 24.04.2018 in respect of appellant's own case concerning the period post 01.04.2011 in which appellant's claim in relation to Real estate agency service, club or association services are held to have relationship with the output service provided by the appellant. Ld. Counsel for the appellant argued that in respect of repair & maintenance services, cleaning services, club and association services in Rituja India case tribunal at Hyderabad vide A/30315/2016 dated 13.05.16 also had held that those services are activities relating to business and allowed the credit where the appellant EOU was engaged in IP software services. Further, with reference to case laws reported in Xilinx India Technology Services Pvt Ltd. Order no. A/30091 to 30093/2016 dated 01.02.2016, Virtusa India Pvt. Ltd. Order no. A/30065/2016 dated 21.01.2016, KLA Tencor Software India P. Ltd. 2016 (45) STR 242 (Tri-Chennai), Excellence Data Research Pvt. Ltd. 2017-TlOL-3133-CESTAT, KLA Ten
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orted the reasoning and legality of the order passed by the Commissioner (Appeals) and in respect of club membership services the expenses were held to be in the nature of recurring benefit extended to the employees and the appellant failed to prove that the said services were not used for the personal use of the employees. Referring to the order passed by the Commissioner (Appeals) that rent a cab vide circular 120/01 by 19.01.2010 qualify as input if rent a cab was pick up of employees, the same is also eligible for credit if the office runs for 24X7 basis. No such proof was established that appellant company was open round the clock. He noted that real estate agency Service were rightly held by the Commissioner to be inadmissible as no relevant invoice was submitted to establish evaluation of portfolio of commercial property for the company. Furthermore management, maintenance and repair service were held to be inadmissible as no nexus of it to the output services was established fo
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brand value of the appellant. In respect of rent a cab Service also, it has indicated its uses towards providing transportation facilities for pick up drop to airport to employees attaining seminars workshops training for its director and its guests. The appellant also submitted by way of filing a synopsis that those membership and cab operating facilities were availed by it in the name of the company and not in the name of any of the employees that would attract personal benefit/ consumption. In admitting that Visa services were put under wrong nomenclature as real estate service, it also has stated that the same ought to have been in the nature of management consultancy visa fees paid for professional services provided by Expardrite Legislative Service towards visa fees for visa extension of an employee of the company under expatriation. However, going by exhibit B containing reply to show-cause notice, it is observed that those grounds were not agitated in the reply to show-cause n
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ing of the Cenvat Credit Rules is to be made with Notification no. 5/2006-CX(NT) to broaden the meaning of input service so as to cover its relationship to output service. The said circular also has attempted a liberal approach in stating that example of services like outdoor catering, rent a cab for pick up and drop of employees to office etc. are input services, without reference to if such pick up is from office or from airport. It also had indicated that correlation and scrutiny of documents to establish nexus is not required to be made if Chartered Accountant certificate or a self certification of the exporter is available to that effect and the department officers are only required to make basic scrutiny of the documents, which if found in order, sanction the refund within a month in order to given effect export to zero rate. The said circular was mainly issued for call centres and BPOs established to cover export of services but contained broad outlines of admissibility of credi
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