TaxTMI 
TaxTMI 
TaxTMI 
2023 (5) TMI 866
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....ified 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 5 of CENVAT Credit Rules,2004 read with Notification No. 27/2012-CE (NT) dated 18.06.2012. ii) I ....
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....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 of the Cenvat credit, appropriate proceedings should have been initiated in terms of Rule 14 of Cenvat Credit Rules, 2004 and refund claim filed under Rule 5 should not have been modi....
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....ithout 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 or letter of undertaking; (D) "Export turnover of services" means the value of the export service calculated in the following manner, namely:- Export turnover of services = payments received during the relevant period for export services + export services whose provision has been completed for which payment had been received in....
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....n 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 substituted rule has prescribed the formula for claiming refund of service tax by the service provider. Under such amended rule in vogue, there is no requirement of satisfying the nexus between the input services and the output service provided by the service provider. Consequent upon substitution of the said Rule in the Union Budget - 2012, the Tax Research Unit (TRU) of CBEC vide letter dated 16.03.2012....
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....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 Pvt. Ltd. v. C.C. GST, Mumbai East; reported in 2021-VIL-466- CESTAT-MUM-ST = 2021 (55) G.S.T.L. 29 (Tri. - Mumbai) vide order dated 17-9-2021 held that the amended Rule 5 ibid does not require establishment of any nexus between input and export services. The rule 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....
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.... 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 a yardstick for taking credit of service tax. I find that in the case of Mediacom Media India Pvt. Ltd vs. CCG ST, Mumbai East reported vide 2019 (10) TMI 690 - (CESTAT Mumbai) it was also held that where input service had been debited to Profit and Loss Account of the exporter as a business expense, the Cenvat Credit should be eligible. I further find that in the case M/s. 3D PLM Software Solutions Ltd V/s. Commissioner of S.T., Mumbai-VII under 2018(13) G.S.T.L.325 (Tri. -Mumbai) i....
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....urt 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 discharge a statutory obligation, when the employer spends money to maintain their factory premises in an eco-friendly, manner, certainly, the tax paid on such services would form part of the costs of the final products. In those circumstances, the Tribunal was right in holding that the service tax paid in all these cases would fall within the input services and the assessee is entitled to the benefit thereof. In that view of the matter, we do not see any infirmity in the order passed by the Tribunal. Accordingly, the substantial....