TaxTMI 
TaxTMI 
2023 (6) TMI 544
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....t Rules, 2004, as per the table given below: - Sl. No. CESTAT Appeal No. Refund Applicant OIA No. & Date OIO No. & Date Period Amount (in Rs.) Refund allowed Refund disallowed 1. ST/41499/2013 M/s. Saipem India Projects Ltd. 114 & 115/2013 (M-ST) dated 20.02.2013 121/2010 (R) dated 21.10.2011 Oct 2009 to Mar 2010 73,78,675/- 49,89,074/- 2. ST/41500/2013 125/2010 (R) dated 21.10.2011 July 2009 to Sep 2009 17,15,556/- 49,38,320/- 2.1 Briefly stated the facts in these appeals are that M/s. Saipem India Projects Limited, Chennai, the respondent herein, are holders of Service Tax Registration under the category of Consulting Engineer Service, Commercial Training and Coaching, Business Support Service and Information Technology Software Service. The respondent is mainly engaged in providing engineering and allied services in relation to projects in oil and gas, petrochemicals and refineries, both domestic and international. It appears that their main service is Consulting Engineer relating to offshore or onshore allied services and most of the services provided are in the nature of export of service, though....
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....of the other claim pertaining to the period from July 2009 to September 2009, the Assistant Commissioner of Service Tax, Service Tax-II Division, Chennai vide Order-in-Original No. 125/2010 (R) dated 21.10.2011 has disallowed CENVAT Credit availed by the respondent in respect of Advertising Service and Real Estate Agent Service to the tune of Rs.58,854/- on the ground that the same pertained to input services which were unrelated to the provision of their output service and accordingly, sanctioned a refund of Rs.17,15,556/- out of the total claim of Rs.66,57,953/- for the said period by applying the formula prescribed in the said Notification. 4. Being aggrieved, M/s. Saipem India Projects Ltd. filed appeals before the Commissioner of Central Excise (Appeals), Nungambakkam, Chennai, who allowed their appeals deciding the following issues: - (a) The ineligibility of refund prior to registration (b) Refund rejected in respect of certain services as the same are not eligible input services (c) Proportionate credit was arrived by restricting the formula to the period after registration. 5.1 The lower appellate authority has placed reliance on the decisi....
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....finding contrary to the facts of the case. (ii) Regarding the reliance placed by the lower appellate authority on the ratio of the decision in the case of M/s. Ultratech Cement Ltd. (supra), it was argued that the said ratio is relevant only to a manufacturer and not a service provider. The definition of 'input service' as per Rule 2(l) of the CENVAT Credit Rules, 2004 would reveal that there are two parts to the definition i.e., a specific part and an inclusive part. As per the specific part, 'input service' means any service used by a provider of 'taxable service' for providing an 'output service'. So, the use of any taxable service must be directly connected with the provision of the output service and not indirectly. Thus, the proper test to decide as to whether a particular service can be treated as an 'input service' for a particular 'output service' is to see whether, but for the use of the said input service, the said output service could not practically be provided in the manner in which it is required to be provided. It is this nexus that has been emphasized by the CESTAT, South Zonal Bench, Bangalore in its Final Order Nos. 590 to 601/2010 dated 19.03.2010 holdi....
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.... prescribed under Rule 14 of the CENVAT Credit Rules for recovery of CENVAT Credit wrongly taken or erroneously refunded, ought to have been followed in order to see if the input services were eligible for credit. In support of her argument, she relied upon the following decisions: - * Infosys BPO Ltd. v. C.C.E. & S.T., Bangalore, Service Tax-I [2022 (4) TMI 306 - CESTAT, Bangalore] * K Line Ship Management (India) Pvt. Ltd. v. Commissioner of Service Tax [2017 (7) TMI 412 - CESTAT, Mumbai] * WNS Global Services Pvt. Ltd. v. Commissioner of C.G.S.T. [2023 (3) TMI 130 - CESTAT, Mumbai] * Commissioner of Service Tax, Delhi v. Convergys India Pvt. Ltd. [2009 (16) S.T.R. 198 (Tri. - Del) affirmed in 2010 (20) S.T.R. 166 (P&H)] 9. Heard both sides and perused the records as available in the appeals. 10.1 We find that the learned lower appellate authority has relied upon the decision in the case of M/s. mPortal India Wireless Solutions P. Ltd. v. Commissioner of Service Tax, Bangalore [2012 (27) S.T.R. 134 (Kar.)] on the issue of allowing accumulated CENVAT Credit for refund prior to registration. The relevant portion of the above decision is ext....
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.... inclusive and as long as it is used in or in relation to the business, the assessee is eligible for taking the credit. The Hon'ble Apex Court in the decision rendered in the case of Commissioner of Central Excise, Nagpur v. M/s. Ultratech Cement Ltd. [2010 (20) S.T.R. 577 (Bom.)] has held as under: - "33. It is argued on behalf of the Revenue that not only the ratio but the decision of the Apex Court in the case of Maruti Suzuki Ltd. (supra) must be applied ipso facto to hold that the credit of service tax paid on outdoor catering services is allowable only if the said services are used in relation to the manufacture of final products. That argument cannot be accepted because unlike the definition of input, which is restricted to the inputs used directly or indirectly in or in relation to the manufacture of final products, the definition of "input service' not only means services used directly or indirectly in or in relation to manufacture of final products, but also includes services used in relation to the business of manufacturing the final products. Therefore, while interpreting the words used in the definition of 'input service', the ratio laid down by the Apex Court....