TaxTMI 
TaxTMI 
2013 (3) TMI 133
X X X X Extracts X X X X
X X X X Extracts X X X X
....for consideration together. 2. The appellant is a service provider under the category of "Business Auxiliary Services" and have been exporting services to their clients abroad. The appellant claimed refund of input service tax credit which they could not utilize under Rule 5 of the CENVAT Credit Rules, 2004. These refund claims were partly sanctioned and partly rejected. It is against the part rejection of the refund claims the appellant is before us. 3. As regards the refund claims filed in Mumbai Commissionerate, the period involved is April 2006 to March 2008 and there are five refund claims and the amount of refund rejected in respect of these five claims works out to 46,53,056/-. The refund claims have been rejected on the ground tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... distribution and the Head Office of the appellant was not registered as input service distributor prior to 16.05.2006 and therefore, they could not have availed CENVAT credit. 4. The learned Counsel for the appellant makes the following submissions. 4.1 As regards the refund claim pertaining to Mumbai Commissionerate, the input service on which they availed credit are such as advertising services, clearing and forwarding services, Rent-a-cab services, warehousing services, cleaning services, GTA services, event management services, catering services, accounting services, security services etc. All these services are essential for rendering the output services and, therefore, the rejection of the refund claims on the ground that these ser....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... refund pertaining to Nasik Commissionerate, the learned Advocate submits that in their own case this Tribunal in order No. A/686-687/12/CSTB/C-I dated 30.10.2012 had considered their claim and remanded the case back to the authorities at Nasik for reconsideration of the matter. 4.4 In view of the above submissions the learned Counsel argues that the claims are maintainable in law. 5. The learned A.R. appearing for the Revenue reiterates the findings of the lower authorities. 6. We have carefully considered the rival submissions. 6.1 As regards the claims pertaining to Mumbai Commissionerate, we find that input services on which credit taken have a direct nexus with the output service rendered considering the nature of the service itsel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....consider the refund claims. Of course it will be the responsibility of the appellant to establish that the refund claims pertain to export transactions undertaken by them and the export proceeds have been received in convertible foreign exchange by the appellant and their claims have been filed within the time period stipulated in the Notification issued under Rule 5 of the CENVAT Credit Rules, 2004. 6.3 As regards the three refund claims pertaining to the Pune Commissionerate, we find the claim has been rejected only on the ground that for the period prior to 2006, the output services rendered by the appellant namely, 'Call Centre Services' were exempted prior to 01.03.2006 and therefore they are not entitled for service tax paid on input....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... retrospective. Reference in this regard has been made to the Supreme Court decision in the case of Boucher Pierre Andre v. Superintendent, Central Jail, Tihar, New Delhi AIR 1975 SC 164 : (1975) I SCC 192 wherein para 2 the Supreme Court held that benefit to set off pre-conviction detention period against the term of imprisonment conferred by section 428 of the Criminal Procedure Code, 1974 'where an accused person, has, on conviction been sentenced to imprisonment for a term' is also available where the sentence was imposed before the commencement of the Code to reduce the unserved portion of the sentence and that in so construing the section it was not given any retrospective effect for it did not affect the sentence already undergone bu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gument of the department that the services are not directly exported from the premises of the appellant but were routed through telecom service provider, this ground is totally unsustainable. When an exporter undertakes exports electronically, the data has to be delivered to the telecom authorities for transmission of the same abroad. That does not mean that export has not been taken place. So long as the data has been transmitted abroad and the appellant has. received the consideration in convertible foreign exchange the export is deemed to have been taken place. Therefore, rejection on this ground is clearly unsustainable in law. 6.6 Further the argument that the IT services were not taxable prior to 16.03.2008 and therefore CENVAT credi....