2009 TMI - 33501 - CESTAT BANGLORE

FIBRES & FABRICS INTERNATIONAL PVT. LTD. & ANR. Versus CC (APPEALS), BANGALORE

Service Tax - Refund of unutilized input service credit on export of final product - with effect from 10.09.2004, Rule 5 of Cenvat Credit Rules, provided refund of Cenvat Credit on input or input service - Even though the rule allows it, Notification no. 11/2002 dated 01.03.2002 did not provide the refund - But, that notification was superseded by another Notification 5/2006 dated 14.03.2006 providing refund of input credit also, which has been not utilized - there is indeed a provision u/r 5 for such refund w.e.f. 10.9.04, just because the notification has not been issued at that time, we cannot deny the benefit provided in the Rule - Not. no. 5/06 to be taken as effective from 10.9.04 - refunds pertain prior to 14.03.2006 so this is admissible

 

2009 TMI - 33480 - CESTAT BANGLORE

NIPUNA SERVICES LTD. Versus CCE, C & ST (APPEALS-II), HYDERABAD

Service Tax - Refund of credit on input services utilized in the service exported - Satyam (India) acts as an agent - receipt of foreign exchange by Satyam and converted and paid by Satyam to the appellants - what is received by the agent in foreign exchange would be deemed to have been received by the appellant for the purposes of EOSR - appellant not directly received the payment in foreign currency, not relevant - receipt for the services rendered was only in convertible foreign currency and therefore there is no violation of any of the rules - refund of input credit allowed

 

2009 TMI - 33230 - CESTAT NEW DELHI

BBC WORLD (I) PVT. LTD. Versus COMMISSIONER OF SERVICE TAX, NEW DELHI

Service Tax - Appellant are a subsidiary in India of U.K. company (BBC) and their functions are securing advertisement for airtime sales on BBC World Channel, and collecting airtime revenue for BBC, for which they get commission from BBC - when the same person i.e. the Appellant are providing the broadcasting service, as defined under Section 65(15) of the Act, to their clients in India and also the Business auxiliary service, as defined under Section 65(19) of the Act, to BBC, U.K., the latter cannot be treated as an input for the former - therefore, Marketing and Bill collection under BAS for principal cannot be treated as input service - credit not admissible - impugned order rejecting of adjustment of excess paid tax against short payment, is justified because as per Rule 6(3) of STR, adjustment can be done only when Service tax paid at higher rate or value - assessee's appeal is dismissed

 

2009 TMI - 32384 - CESTAT, AHMEDABAD

CAPIQ ENGINEERING PVT. LTD. Versus CCE,VADODARA

Service Tax - 100% EOU - refund claim of unutilized credit was rejected on ground that services on which credit has been availed during the quarter April 2006 to June 2006 could not be wholly consumed for export done during the quarter in question - held that refund of unutilized credit balance at end of quarter is admissible, though services have not been fully utilized in that quarter as one to one co-relation between input service & exported good is not required - credit on mobile phone is also admissible

 

2009 TMI - 32317 - CESTAT, AHMEDABAD

RAWMIN MINING AND INDUS. LTD. Versus COMMR. OF C. EX., BHAVNAGAR-I

Service Tax - Refund of unutilized credit to 100% EOU on the service tax paid towards C&F charges and commission to Foreign Commission Agents - as there was no denial of credit in SCN, lower authorities have travelled beyond the grounds while rejecting SCN - refund claim rejected without providing opportunity by way of proceedings to deny credit - place of removal in case of FOB export is port so credit on C & F Agent services is admissible - in respect of foreign commission agents also, refund is admissible

 

2009 TMI - 32138 - CESTAT MUMBAI

COMMISSIONER OF CENTRAL EXCISE, PUNE-II Versus I.J. MUTHU FOODS PVT. LTD.

Service Tax - Claim for refund of unutilized credit - Commissioner upheld the claims subject to verification of all documents/fulfilment of conditions of the Notification No. 5/06 - since the Commissioner (Appeals)' right to remand a case has been taken away with the amendment of Sec. 35A w.e.f. 11-5 -01, impugned order is set aside and case is remanded to adj. authority for re-examining the refund claims, subject to the assesses fulfilling the conditions stipulated in the Notification 5/06- CE dated 14-3-06

 

2008 TMI - 30901 - CESTAT, NEW DELHI

JINDAL STEEL & POWER LTD. Versus COMMISSIONER OF CENTRAL EXCISE, RAIPUR

Service Tax - Services received from foreign company - Rule 2(p) CCR - as recipient, assessee paid the tax on the deemed output services - credit denied on ground that assessee was not providing any output service is not justified - held that merely because assessee was required to pay the tax on behalf of the supplier, they should not be denied the right as a recipient - credit cannot be denied merely because assessee wrongly paid tax as 'consulting engineer services' instead of 'transfer of technology'

 

2008 TMI - 30271 - CESTAT AHMEDABAD

BISAZZA INDIA PVT. LTD. Versus CCE, AHMEDABAD

Service Tax - Notification no. 5/2006 - Use of input services for manufacturing the goods for export - unutilized credit - whether refund (of input service credit) in cash has to be allowed in terms of Rule 5 or not - whether manufacturers were eligible for refund prior to 14.3.2006 or not - Held, yes - matter remanded to the original Adjudicating Authority to take a decision in terms of the notification after examining all aspects

 

2008 TMI - 4521 - CESTAT, MUMBAI

CALIBER POINT BUSINESS SOLUTIONS LTD. Versus COMMR. OF C. EX., BELAPUR

Service Tax - Refund of unutilized Credit on input services, in case of Export of Services - refund denied on ground that provision of refund under Export of Services introduced only w.e.f. 14/03/06 - held that any claim filed after 14/03/06, even for earlier period, cannot be turned down if the claim satisfies other requirements - held that substituted Rule 5 will be applicable for the export of services prior to 14/03/06 - refund is subjected to fulfillment of conditions of not. 5/06, so matter remanded

 

2008 TMI - 4049 - CESTAT, MUMBAI

WNS GLOBAL SERVICES (P) LTD. Versus COMMISSIONER OF C. EX., MUMBAI

Service Tax - Business auxiliary services & export of said services - availing benefit of credit in respect of input services used in export of auxiliary services - filed refund claim for unutilized credit - rule 5 which not provide for refund of unutilized credit to the producer of output services got substituted during relevant time - Once the refunds are under the amended rules & notification issued thereunder, the same can't be denied merely because they relate to exports made prior to date of amendment

 

2008 TMI - 3716 - CESTAT, MUMBAI

WNS GLOBAL SERVICES (P) LTD Versus COMMISSIONER OF CENTRAL EXCIE, MUMBAI

Service Tax - Refund of unutilized cenvat credit for export of services under rule 5 as amended with effect from 14-3-2006 -refunds cannot be rejected as there was no condition in the notification or rules that such refund would apply only in respect of the exports made after 14.3.2006. Once the refunds are under the amended rules and the notification issued there under, as already held, the same cannot be denied merely because they related to the exports made prior to the date of amendment.

 

2008 TMI - 3715 - CESTAT, BANGALORE

The Commissioner of Central Excise, Hyderabad-IV Versus M/s. Deloitte Tax Services India Pvt. Limited

Service Tax - The activities related to tax returns other business activities can not be said as Information Technology Services which was excluded from Business Auxiliary Services and therefore, refund of cenvat credit on input services used in providing export of such services is can not be disallowed. The scope of definition of input services is very wide and it covers input services related to business. Refund of cenvat credit is also allowed on export made prior to 14-3-2006 (the date of amendment).

 

Refund of unutilized input service credit: exporters may claim cash refunds when notification conditions and documentary proof are met. Refunds of unutilized Cenvat credit on input services are allowable under substituted Rule 5 and Notification No. 5/2006 for export transactions, including claims for periods prior to formal notification issuance, provided exporters satisfy the notification's conditions and documentary requirements; credits on mobile, C&F charges and foreign commission agent services have been held admissible, while services that are output services of the same supplier (e.g., certain business auxiliary services to a principal) are not allowable as inputs.