AI Drafter - (New and Powerful) 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
2023 (5) TMI 866
X X X X Extracts X X X X
X X X X Extracts X X X X
....7 1.2 By the impugned orders, Commissioner (Appeals) has modified the orders-in-original and partly allowed the appeals of the appellant. 1.3 Original authority has passed orders-in-original holding as follows:- Order-in-Original No. R/153/PK/2018-19 dated 28.03.2019 (in appeal ST/85076/2020) "ORDER i) I sanction refund claim totally amounting to Rs. 1097192/- (Rupees Ten lakhs Ninety Seven thousand One hundred and Ninety two only) to M/s. Hapag Lloyd Global Services Pvt. Ltd as per provisions of Rule 5 of CENVAT Credit Rules, 2004 read with Notification No. 27/2012-CE (NT) dated 18.06.2012 as mentioned above. ii) I reject refund claim totally amounting to Rs.907725/- (Rupees Nine lakh Seven thousand Seven hundred and Twenty five only) to M/s. Hapag Lloyd Global Services Pvt. Ltd for the above period and for the reasons mentioned above." Order-in-Original No. R/151/PK/2018-19 dated 28.03.2019 (in appeal ST/85080/2020) "ORDER i) I sanction refund claim totally amounting to Rs. 1594907/- (Rupees Fifteen lakhs Eighty Nine thousand two hundred and seven only) to M/s. Hapag Lloyd Global Services Pvt. Ltd as per provisions of Rule ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al services Business auxiliary services Works contract services (RCM) Online database access retrieval services 2.2 Commissioner (Appeals) has allowed the credit in respect of air travel services and travel agent services, accommodation services (hotel charges), management, maintenance and repair services, courier services, business auxiliary services, works contract services, manpower recruitment agency services. 2.3 Aggrieved appellant has filed these appeals. 3.1 I have heard Shri Ranjeet Mahtani, Advocate for the appellant and Shri Prabhakar Sharma, Superintendent, Authorised Representative for the Revenue. 3.2 Arguing for the appellant, learned counsel submits that:- The issue in respect of non-admissibility of Cenvat credit in their own case for the same period has been considered by the Tribunal and the Tribunal by its order has allowed the credit in respect of these services. Tribunal has allowed credit in respect of business travel services, security services, hotel stay charges/hotel accommodation/food related services. Hence these should be allowed. Further the Tribunal has constantly been taking the view that for the disallowance o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....07.03.2012 to provide as under. 5. Refund of CENVAT Credit. - (1) A manufacturer who clears a final product or an intermediate product for export without payment of duty under bond or letter of undertaking, or a service provider who provides an output service which is exported without payment of service tax, shall be allowed refund of CENVAT credit as determined by the following formula subject to procedure, safeguards, conditions and limitations, as may be specified by the Board by notification in the Official Gazette: Refund amount = (Export turnover of goods+ Export turnover of services) x Net CENVAT credit Total turnover Where,- (A) "Refund amount" means the maximum refund that is admissible; (B) "Net CENVAT credit" means total CENVAT credit availed on inputs and input services by the manufacturer or the output service provider reduced by the amount reversed in terms of sub-rule (5C) of rule 3, during the relevant period; (C) "Export turnover of goods" means the value of final products and intermediate products cleared during the relevant period and exported without payment of Central Excise duty under bond....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e only provides that the admissible refund will be proportional to the ratio of export turnover of goods and services to the total turnover, during the period under consideration, of the Net CENVAT credit taken during that period. Undisputedly in the refund proceedings under Rule 5 of CENVAT Credit Rules, 2004 as amended any such attempt whereby credit availed during the period under consideration is sought to be denied or varied, is not permissible. If the quantum of the Cenvat Credit is sought to be varied, by holding that certain services do not qualify as input services then the same could have been done by invoking the provisions of Rule 14 of the CENVAT Credit Rules, 2004. In my view the Commissioner (Appeal)/ Adjudicating Authority has misdirected himself by undertaking such exercise while adjudging the refund claim filed in terms of Rule 5. In the case of Accelya Kale Solutions Ltd. Vs. Commissioner of Central Goods Service Tax and Central Excise, Mumbai [2018-TIOL 2452- CESTAT-MUM]. tribunal observed, as under:- "3. Rule 5 of Cenvat Credit Rules, 2004, was substituted vide Notification No. 18/2012-CE (NT) dated 17.03.2012, with effect from 01.04.2012. The said sub....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s of provision of Rule 5." 4.6 In view of the discussions as above I am not in position to sustain the impugned order to the extent indicated. Since the Commissioner (Appeals) has by the impugned order held the refund to be admissible, to the extent of CENVAT Credit held admissible by him subject to verification of the documents by the original authority I modify his order to this extent i.e. that entire credit as claimed by the Appellant for determining the refund amount is held admissible if not held admissible in proper proceedings initiated under Rule 14 of the CENVAT Credit Rules, 2004." B. BNP Paribas India Solution Pvt. Ltd. [2022 (58) GSTL 539 (Tri.-Mumbai)]:- "There is no dispute that the aforesaid decision of this Tribunal in appellants' own case covered both pre-and post-amendment period and also the services which are in issue herein. So far as the decision in the matter of Maersk Global (supra) is concerned, I am afraid that the Learned Authorised Representative is not correct in his submission that the said decision pertains to preamendment period. Similarly, while interpreting Rule 5 this Tribunal in the matter of M/s. Cross Tab Marketing Service....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ses of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage up to the place of removal, procurement of inputs, accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, security, business exhibition, legal services, inward transportation of inputs or capital goods and outward transportation up to the place of removal; but excludes,- (A)...... (B) ..... (C) such as those provided in relation to outdoor catering, beauty treatment, health services, cosmetic and plastic surgery, membership of a club, health and fitness centre, life insurance, health insurance and travel benefits extended to employees on vacation such as Leave or Home Travel Concession, when such services are used primarily for personal use or consumption of any employee; (emphasis supplied) I find that the above mentioned definition does not require for one to one relation between Input and output services. However, the same should not be used primarily for personal use or consumption of any employee. This condition is ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....th consequential relief, if any." Considering the above, I find that the above judgement explains that one to one nexus is not needed at all for taking credit of the same for such services which are not having one to one nexus i.e. input service to output service corelation and also not used for personal use by any employee. 7.2 In this regard, I also find support from the case of CCE, Bangalore Vs. Millipore India (P.) Ltd., reported vide [2011]16 taxmann.com363(Kar.), wherein the Hon'ble High court of Karnataka held that: "7. That apart, the definition of input services is too broad. It is an inclusive definition. What is contained in the definition is only illustrative in nature. Activities relating to business and any services rendered in connection therewith, would form part of the input services. The medical benefit extended to the employees, insurance policy to cover the risk of accidents to the vehicle as well as the person, certainly would be a part of the salary paid to the employees. Landscaping of factory or garden certainly would fall within the concept of modernization, renovation, repair, etc., of the office premises. ... It is to disch....