TaxTMI 
TaxTMI 
2009 (6) TMI 447
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....iod 1-5-2006 - 1-6-2006 2. ST/145 - 146/2008 83 & 83A/2008 ST, dated 31-1-2008 Rs. 67,66,081 for the period 15-3-2005 - 30-6-2005 Rs. 84,91,822 for the period 1-7-2005 - 30-9-2005 Rs. 1,23,98,691 for the period 1-10-2005 - 31-12-2005 and Rs. 47,96,478 for the period 1-1-2006 - 28-2-2006 2. We heard both sides. Order-in-Appeal No. 160/2007, dated 26-12-2007 3. The appellant is a 100 per cent EOU. They have been registered under Service Tax for rendering services under the category of 'Maintenance & Repair Service/Commissioning & Installation Service, Business Auxiliary Service and Consulting Engineering Service'. They filed three rebate claims for Rs. 26,73,601 for the period from 1-3-2006 to 31-3-2006, for Rs. 26,53,405 for the period from 1-4-2006 to 30-4-2006 and Rs. 66,10,925 for the period from 1-5-2006 to 1-6-2006, totally amounting to Rs. 1,19,37,931 for services exported under the Export of Service Rules, 2005. The lower authority passed the Order-in-Original rejecting the claims on the grounds that the services exported are mainly Software Developm....
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....bate under the provisions of Export of Services Rules, 2005. The appellants are aggrieved over the following remarks of the Commissioner (Appeals) in the impugned order : "It is needless to mention that the service tax paid on services which are not necessary for providing export of output services, such as services of tour operators used for pick up and drop of employees, services of outdoor catering, shamiana services, event management or convention services etc., which need to be examined on case basis depending on the actual purpose for which they are used, at the time of sanction of rebate." 5. The following submissions were urged :- The appellant is a wholly owned subsidiary of M/s. Dell International Inc.-USA. They are a 100 per cent EOU with Software Technology Parks of India (STPI). They provide business process outsourcing services like call centre, IT support and back office data processing. These services are provided exclusively to Dell Group Companies and their customers outside India and all the services are exported out of India. The service fee for providing the services is the entire cost of the appellants with a marking of 10 per cent. The ap....
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....2005 to February, 2006, wherein the Assistant Commissioner has given the finding after detailed scrutiny of all the documents filed along with rebate claim that the input services in dispute have been used in taxable service exported. The department has not filed any appeal against the above part of the said order which means that the same view taken by the AC has got finality. Further, the Commissioner of Central Excise (Appeals-II) for the period from March, 2005 to February, 2006 vide Orders-in-Appeal Nos. 83 and 83A/2008 ST, dated 31-1-2008 has held that the appellant is providing taxable service and using input services for exporting its services. In view of the said findings in the appellants' own case, the issue as to the eligibility stands settled in favour of the appellants inasfar as they are exporting taxable services and of the use of the input services in such export services. Once an issue is settled between the parties the same cannot be argued against by the Department. Reliance was placed on the decision of the Apex Court in the case of Suptd. of Central Excise v. D.C.I. Pharmaceuticals (P.) Ltd. 2005 (181) ELT 189. Our attention was drawn to the definition of ....
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....es relating to business" has not been defined in the Cenvat Credit Rules. It is also not defined in the Act and in the Finance Act, 1994. In terms of the Supreme Court decision in the case of the Mazagaon Dock Ltd. v. CIT/CEPT AIR 1958 SC 861, the term "business" should be given a wider and liberal meaning for the purposes of fiscal statutes. Therefore, an output service provider can take Cenvat credit on all those input services which are so integrally connected with the providing of output service without which such provision of service would be impossible or commercially inexpedient. Reliance was also placed on the following decisions :- (a) CCE v. GTC Industries Ltd. [2008] 17 STT 63 (Mum. - CESTAT); (b) Victor Gaskets India Ltd. v. CCE [2008] 14 STT 403 (Mum. - CESTAT); (c) CCE v. Cable Corpn. of India Ltd. [2009] 19 STT 158 (Mum. - CESTAT); (d) CCE (LTU) v. Brakes India Ltd. [Appeal Nos. E/SO/261/2008 and E/306/2008, dated 3-10-2008] (Mad.); (e) CCE&C v. Endurance Systems India (P.) Ltd. [Appeal No. E/CO/45/2008 - Mum., dated 11-12-2008]; (f) Aditya Birla Nuvo Ltd. v. CCE [Appeal No. ST/123/2008, dated 16-1-2009] (Ahd.). ....
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....and transaction processing; and (c) IT support services of remote maintenance, trouble shooting, catering to Dell's group companies outside India and their overseas customers. 11.1 According to the appellants, the above services would qualify to be Business Auxiliary Services, in any case, in the light of the Board's clarification dated 21-8-2003, the above services cannot be categorized under "Information Technology Service" and excluded from the scope of "Business Auxiliary Service." The extract of the Board's Circular is reproduced here :- "2. Scope of IT service under Business Auxiliary Service :- ** ** ** 2.3 It is clarified that there is no contradiction between the clarifications dated 28-2-2003 and dated 20-6-2003. The scope of IT services is explained in the definition of Business Auxiliary Service in the Act itself as any service in relation to designing, developing or maintaining of computer software or computerized data processing or system networking or any other service primarily in relation to operation of computer systems. The last words 'primarily in relation to operation of computer systems' make the inten....