2018 (6) TMI 134

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....38,465/- Rs. 81,31,374/- ST/21526/2017 April to June 2014 Rs. 2,35,28,336 Rs. 33,29433/- ST/21531/2017 July   to September 2014 Rs. 8,04,58,885/- Rs. 29,12,471/- ST/21532/2017 October to December 2014 Rs. 5,34,69,581/- Rs. 22,48,011/- ST/21503/2017 January to March 2015 Rs. 5,66,04,356/- Rs. 16,85,785/- ST/21504/2017 July to September 2015 Rs. 7,58,55,512/- Rs. 2,84,33,883/- ST/21528/2017 October to December 2015 Rs. 6,16,48,714/- Rs. 53,17,904/- For the sake of convenience, the facts of appeal No.ST/21504/2017 are taken. 2. Briefly the facts of the present case are that the appellant is a 100% EOU and is registered with STPI. Appellants are rendering Information Technology Software Services (ITSS). For providing the taxable services under the category of ITSS which are exported, the appellant availed various input services. The appellant availed CENVAT credit of service tax on various input services as per CENVAT Credit Rules, 2004 (CCR). Since they are unable to utilize the CENVAT credit, they filed periodical refund claims as stated in the table above. The adjudicating authority allowed po....

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....ese are procedural lapses on the part of their vendor and they should not be penalized for this. v. Regarding the issue of invoices not produced / missing invoices, the appellant has made no submission. Submission of input invoices is the basic and bounden requirement for filing refund. vi. With regards to nexus of input the Commissioner(Appeals) has rejected the refund on account of lack of nexus between the input service and the service exported. Aggrieved by the impugned order, the appellant has filed these eight appeals. 4. Heard both sides and perused records.      5. Learned counsel for the appellant submitted that the impugned order is contrary to the proposition of law, facts and the evidences produced. He further submitted that the learned Commissioner(Appeals) has not considered the detailed description of all input services procured by the appellant during the refund period along with justification for uses of such services. He further submitted that the learned Commissioner(Appeals) has not considered the submission of the appellant with regard to exclusion of the export turnover. He also submitted that the first....

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....se services are rendered to Philips Healthcare, the appellant submits that these services are availed for one of its division i.e. health care. These services are required for the operations of the Appellant. Appellant wishes to rely upon the decision of Meg ma Design Automation (l) Pvt. Ltd. 2015 (40) S.T.R. 800 (Tn. Bang.) M/s. Heartland Bangalore Transcription Services (P) Ltd. v. CST. 2011 (21) S.T. R. 430 (Tn.-Bang.) wherein it was held that professional services of consultants are used for assisting the assessee in complying with various statutory provisions. Therefore, it was eligible for refund CCE Deloitte Tax Services India Pvt. Ltd. 2008 (11) S.T.R. 266 (Tri.Bang.). The Adjudicating authority has allowed these services for the period July to September 2015 PA system, Hiring of audio systems, lights etc These services are availed for conducting function, meetings etc. These are essential for operations of the Appellant. Apotex Research Pvt. Ltd. Vs. Commissioner [2015(3) TMI) 346 - CESTAT, Bangalore] Consulting Engineer Services Availed for existing building. These services are availed for the interiors of the premises from where they are providing their....

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....nal, I am of the considered view that this case needs to be remanded back to the original authority to consider the various documents viz. e-BRCs to the tune of Rs. 53,57,67,126/- which has been produced before me and has not been produced before both the authorities below. Further I find that refund claims have also been rejected on account of invoices missing which the appellant submits that he has some of the invoices in his possession which can be produced before the authorities below. Further I also find that the refund claims have been wrongly rejected by both the authorities on the ground that the invoices are not addressed to the registered premises and some of the services have been rendered to Philips Healthcare which is an independent entity. The learned counsel has submitted that Philips healthcare is a Division of the appellant and the appellant is in a position to establish that Philips healthcare is their division and the appellants are entitled to the refund as the services are rendered to that division. Both the authorities have rejected the refund in respect of certain services on the ground that the registration number of the service provider is not mentioned in ....

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.... document does not contain all the particulars but contains details of duty or service tax payable, description of goods, taxable service, assessable value, Central Excise or Service tax registration number of person issuing the invoice, as the case may be name and address of the factory or warehouse or premises of first or second stage dealers or provider of taxable service, and the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise is satisfied that the goods or services covered by the document have been received and accounted for in the books of the account of the receiver, he may allow the Cenvat credit. We find that the assessees are also making mistake of not filing application seeking consideration of their claim by applying provisions of Rule 9(2) of the Cenvat Credit Rules 2004 and the departmental authorities also have refused to consider during the course of appeal documents are defective but these requirements are the ones which are not mandatory as per the provisions of Rule 9 of CCR, 2004 or defects are he/d to be curable by precedent decisions cited before the original adjudicating authority, in our opinion, such claims have to be c....