TaxTMI 
TaxTMI 
2011 (9) TMI 473
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....s were being treated as export under the Export of Services Rules, 2005, no service tax was being paid on the call service provided by them to their client abroad. The appellant filed a claim under Rule 5 of the Export of Services Rules, 2005 for rebate of the service tax paid on input services used in providing of their output service. Rule 5 of the Export of Services Rules, 2005 provides for grant of rebate of central excise duty paid on input services used in or in relation to providing of their output service. 1.2 Rule 5 of the Export of Services Rules, 2005 provides for grant of rebate of central excise duty paid on input and service tax paid on input services used in providing the export service out of India, subject to such conditions or limitations, if any, and fulfilment of such procedure, as may be specified, in the notification issued by the Government. The Government has issued Notification No. 12/2005-ST, dated 19.04.1995 prescribing the condition and also the procedure be followed for claiming rebate under Rule 5 of the Export of Services Rules. In terms of para 3.1 of the notification, the provider of taxable service for the purpose of claiming of rebate on export....
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....ation and commissioning services which have not been included in the declaration. The rebate claim for Rs. 19,88,526/- had been rejected for non submission of original invoices. In respect of the Assistant Commissioner's order rejecting the claim of Rs. 38,14,138/-, the appellant filed an appeal before the Commissioner (Appeals) who vide order-in-appeal dated 30.09.2008 set aside the order of the Assistant Commissioner and allowed the claim in respect of that amount. In the present proceedings, there is no dispute about the amount of Rs. 38,14,138/-. 1.4 As regards the rebate claim of Rs. 2,50,54,431/- which had been sanctioned by the Assistant Commissioner, this portion of the claim was examined by the Commissioner who was of the view that AC's order sanctioning the same was not correct and under the review powers vested under Section 84, show cause notice was issued for disallowing the rebate claim on the grounds that- (i) in respect of number of some services, the required declaration had not been filed as per para 3.1 and the words "other Services" in the declaration filed under para 3.1 of the Notification No. 12/2005-ST.(NT) would not cover the services used but no....
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.... have filed Cross Objection No. ST/CO/115/2010. 2. Heard both the sides. 3. Shri J. P. Singh, Advocate, the ld. Counsel for the appellant, pleaded that Commissioner's order ordering credit of the rebate claim to Consumer Welfare Fund is totally incorrect, and as per the provisions of Section 11B, the principles of unjust enrichment not applicable in respect of export rebate, that same view has been taken by the Tribunal in case of CST v. S. Mohanlal Services [Final Order Nos. A/2329-2330/2009-WZB/Ahd., dated 30-10-2009] (Tri. Ahd.). that claiming the rebate, in question, the procedure as prescribed in the Notification No. 12/2005-ST, dated 19.04.2005 had been followed, that the jurisdictional Assistant Commissioner had sanctioned the rebate of Rs. 2,50,54,831/- after satisfying himself in this regard, that Commissioner's finding that the provisions of para 3.1 of the Notification No. 12/2005-ST, dated 19.04.2005 have not been followed inasmuch as a number of services are not mentioned in the declarations filed, is not correct; that as regards the proof of export in form of details of the remittance received for export of services, the appellant had produced a detailed....
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....eclarations, is not acceptable; (ii) Condition of para 3.4 (ii)(b) of the Notification No. 12/2005-ST is not fulfilled inasmuch as FIRCs submitted by the appellant as an evidence of receipt of remittance against export of taxable services do not contain the invoice number etc. of the export invoices, and therefore it is not possible to establish that the FIRCs pertain to the export services; and (iii) Service of advertisement, Chartered Accountant's and Management Consultancy cannot be treated as services used for providing output service which was exported and hence in respect of these services export rebate would not be admissible. 5.1 The contention of the appellant is that all the import services had been declared in the monthly declarations that the services in question are covered by "other services" in the declarations, that in the declarations filed under para 3.1 it is not possible to mention each and every input service expected to be availed during the month and that the Assistant Commissioner after checking had found only three services as not declared but the order of the Assistant Commissioner was set aside by the CCE (Appeals). As regards violation of conditio....
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....ct, when as per para 3.4(a)(ii) of the Notification No. 12/2005-ST, the rebate application is accompanied by the invoices for inputs and input services as documentary evidence regarding the use of the input services, and there is no allegation of the department that rebate claims were not accompanied by such invoices. In view of this, even if the Commissioner's observation that certain services were not mentioned in the declaration is accepted, it would be only a technical lapse and it would not be correct to deny the rebate claim just for the reason that certain input services were not specifically mentioned in the declarations. As held by the Hon'ble Punjab and Haryana High Court in the appellant's own case Convergys India (P.) Ltd. (supra) the rebate under Rule 5 of the Export of Services Rules cannot be disallowed for delay in filing of declaration under para 3.1 of the Notification No. 12/2005-ST. Moreover, when from the facts narrated in the show cause notice and the impugned order-in-original it is clear that the declarations, as required under para 3.1 of the notification, were being filed and in those declarations, only some inputs services as mentioned above w....
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....fication No. 12/2005-ST. Just because FICRs do not bear the export invoice numbers, it cannot be concluded that the same do not pertain to the service provided by the appellant to their client abroad. 8. As regards the rebate claim in respect of advertisement service, Chartered Accountant Services of Management Consultant Services, the department does not dispute that the same are covered by the definition of 'input service' as given in Rule 2(1) of Cenvat Credit Rules, 2004. The department's objection is that these services are not used for providing the Customer Care Services which was exported. On this point the Tribunal in the appellant's own case CST v. Convergys India (P.) Ltd. [2009] 21 STT-67 (New Delhi - CESTAT) has held that there cannot be two different yardsticks, one for permitting credit and the other for eligibility for granting rebate and that whenever 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 rebate and that without questioning the eligibility for credit, the eligibility to rebate cannot be questioned. Following this judgement of the Tribunal, we....
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....T 401 (SC), Continental Foundation Jt. Venture v. CCE 2007 (217) ELT 177 (SC), Anand Nishikawa Co. Ltd. v. CCE, Meerut 2005 (188) ELT 149/2 STT 226 (SC) etc. The appellant's plea in this regard were dismissed by the Commissioner in para 13F of the order as under:- "The noticee's contention that "Interest under Section 75 and penalty under Sections 77 & 78 of the Act are not leviable in the present case" also does not hold merit because as discussed in para A & B above, this is a case of erroneous refund to the noticees which they availed by way of adopting the means of wilful mis-statement and suppressing the facts with intent to claim undue rebate". There is absolutely no discussion in the impugned order about the evidence in this regard as to whether the criteria for invoking these provisions, as laid down in the above mentioned judgments of the Apex Court is satisfied. The only explanation for such type of adjudication is that either the Commissioner is totally ignorant of the judgments of the Apex Court on this issue or in order to error the side of the revenue he has chosen to defy the judgments of the Apex Court. But such adjudication orders are mockery of justi....