TaxTMI 
TaxTMI 
2023 (9) TMI 455
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....ctioning Authority that travelled up to Commissioner (Appeals) level, who remanded both the matters for de-novo adjudication and with successive rejection order by the Adjudicating Authority vide Order-in-Appeal No. 96/2013 dated 23.07.2013 refusing refunds in the remand proceeding matter again travelled up to this Tribunal level, after Commissioner (Appeals) confirmed both rejection order through a common order on dated 26.09.2019, as referred above, is assailed in this appeal. 2. Briefly stated, facts of the case, as narrated by the Appellant, is that Appellant is a company registered under Companies Act. It was providing Information Technology Software Services (ITSS) and Business Support Services (BSS) to its group companies namely Nov....
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....ered any specific discernible services, which are taxable so as to entitle it to avail CENVAT Credit; (iii) Export invoices of Appellant did not contain description of the services and abbreviations contained only generic terms like "TS", "DMPK", "CDM" which cannot be equated with any specific activity in terms of service agreement or services as defined under Section 65 of the Finance Act, 1994. 3.1 On these aspects the arguments of learned Counsel for the Appellant is that export invoices clearly indicate that Appellant had provided ITSS which is defined under Section 65(105)(zzzze) read with Section 65(53a) of the Finance Act, 1994 and BSS under Section 65(105)(zzzq) read with Section 65(104c) as defined during the relevant time and t....
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....by the Hon'ble Supreme Court which he stated to have no relevance to the facts on hand since 'trading activities' which were considered as 'sale' or 'deemed sale' were being dealt in that judgment and the same is unrelated to the case of the Appellant. In citing precedent case laws on the issue of admissibility of CENVAT Credit on export of services in the case of mPortal India Wireless Solution Private Limited reported in 2012 (27) STR 134 (Kar.) that has been followed consistently by this Tribunal in the case of KPIT Cummins Infosystems Ltd. Vs. Commissioner of Central Excise, Pune-I reported in 2013 (32) STR 356 (Tri.-Mumbai), AXA Business Services Pvt. Ltd. Vs. Commissioner of Service Tax, Bangalore reported in 2017 (49) STR 556 (Tr....
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....V reported in 2016 (45) STR 185 (Tri.-Bang.), M/s. M & G Global Services Pvt. Ltd. vs. Commissioner of CGST & Central Excise, Mumbai reported in 2023 (3) TMI 571 - CESTAT Mumbai, M/s. Quantum Advisors Pvt. Ltd. Vs. Commissioner of CGST & Central Excise, Mumbai reported in 2023 (3) TMI 576 - CESTAT Mumbai to support his stand. 4. In response to such submissions learned Authorised Representative for the Respondent-Department Mr. Anand Kumar submitted that those 15 refund applications were initially dealt at Hyderabad unit of the Service Tax Department and after being remanded for de-novo consideration, the same got transferred to Mumbai-III Commissionerate because of centralised Excise Registration obtained by the Appellant and the Commissio....
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....al memo are taxable services and only because of the benefits of Notification No. 09/2005-ST was availed by the Appellant that provided exemption for export of services, Service Tax was not payable. However, it was held by Hon'ble Karnataka High Court in the case of mPortal India Wireless Solution Private Limited reported in 2012 (2) STR 134 (Kar.) that CENVAT Credit is available though the export of service is not a taxable service. Further, the findings of the Commissioner (Appeals) that Appellant's case fits into the ratio of Lally Automobiles Pvt. Ltd. judgement is untenable since it was passed in respect of "trading" which is not at all a service as per Article 366(29A) of the Constitution of India and, therefore, considered as exe....
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....fund of CENVAT Credit and export without payment of tax cannot be equated with taxable service only because of the fact that such export was made under bond. Further, such provision is made solely for the manufacturer for which it cannot be applied straight away to export of services as explanation appended to it indicates that export of service means a service which is provided as per Rule 6(a) of the Service Tax Rules and 6(a) is brought into the Statute book w.e.f. 01.07.2012 i.e. much after the period under dispute. More importantly appendix to Notification No. 05/2006-CE (NT) permits output service to be exported by following the procedure laid down in the Central Excise Rules, 2002 or in the Export of Service Rules, 2005 and not solel....