TaxTMI 
TaxTMI 
2023 (9) TMI 655
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....ppellant filed 12 refund claims for unutilized CENVAT Credit under Rule 5 of CENVAT Credit Rules, 2004 read with Notification No.5/2006-CE(NT) dated 14.3.2006. The adjudicating authority vide the impugned order sanctioned a refund amount of Rs. 4,73,75,153/- and rejected the amount of Rs. 1,56,34,321/-. Aggrieved by the order of the Deputy Commissioner, the appellant filed appeal before the Ld. Commissioner (Appeals) who vide impugned order has upheld the order of the Deputy Commissioner. Hence, the present appeal. 3. Heard both the parties and perused the records. 4. Ld. Counsel appearing on behalf of the appellant submitted that the impugned order rejecting the refund with regard to input services used for export of service is not sustainable in law as the same has been passed without properly appreciating the definition of 'Input Service' and export of service rules and without considering the precedent decisions on the same issue. 5. Ld. Counsel has given in tabular form the various grounds of rejection of the refund amount and the appellant's submissions against refund rejection, substantiated by case laws which are reproduced herein below: S. No. Grounds for Re....
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....f the Cenvat Credit Rules nor Notification No. 5/2006 CE (NT) dated 14.03.2006 prescribes any condition for registration of premises before claiming of refund. 7. Furthermore, the Department own circular, i.e., Circular No. 120/01/2010- ST dated 19.01.2010(Page No. 232 to 235), itself provides that in the case of refund under Rule 5, (i) so far as the nature of service which has been received by the exporter can be ascertained; (ii) tax paid therein is clearly mentioned; and (iii) other detailsas required under Rule 4(a) are mentioned, the refund should be allowed and that the Department should take a liberal view in case of incomplete invoices. Such instructions also apply to the present issue. 1,38,62,014/- Registration is not a pre-condition for availment of credit or refund thereof 1. mPortal India Wireless Solutions Pvt. Ltd. Vs. CST, Bangalore; 2012 (27) STR 134 (Kar.)- 2. Principal Commissioner of Central Tax, Bangalore East Vs. Huawei Technology India Pvt. Ltd.; 2022 (60) GSTL 24 (Kar.)- 3. Commissioner of Service Tax, Chennai Vs. E-care India Pvt. Ltd.; 2017 (52) STR 246(Mad.)- 4. Commissioner of Service Tax-III, Chennai Vs. CE....
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....he Appellant for insuring the employees, thereby resulting in greater sense of security and higher level of efficiency among the employees. Thus, these services were used by the Appellant for providing output services. Accounting and Audit Services 2,16,182/ 1. These services were received by the Appellant in relation to certification audit, compliances under various laws prevailing in India, accounting and audit. These services had a direct impact on the finances and stability of the Company and thus, were used for providing output services. 2. Accounting' and 'auditing' services have specifically been mentioned by name and therefore, the Appellant is entitled to credit thereof. 9. The Appellant submits that 'input service' under Rule 2(l) of Credit Rules has been defined to mean any service used by a provider of taxable service for providing output service. The definition is very wide in its ambit for the following reasons: a. Usage of word 'any' implies that there is no restriction of any kind and credit of services of every nature can be availed; ....
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.... submits that in case of invoices issued by other vendors, while Appellant's name had been mentioned, owing to inadvertent error on part of the vendors, the address had not been mentioned. 13. However, since these services were received and accounted for by the Appellant and payments against the same were also made, CENVAT credit and consequent, refund thereof cannot be denied to the Appellant, particularly when the error was committed by the Appellant's vendors. 14. Further, the proviso to Rule 9(2) of the Credit Rules allows for availment of credit even if the invoice does not contain all the particulars but contains details such as description of services, assessable value, and name and address of the service provider. 5,41,352/- 19. Commissioner of Central Excise, Ghaziabad Vs. Majestic Auto Ltd.; 2009 (16) STR 685- 20. Rajasthan Diesel Sales and Service Vs. Commissioner of Central Excise, Jaipur-II; 2014 (36) STR 832- 21. Novozymes South Asia Pvt. Ltd. Vs. Commissioner of Central Excise, Bangalore; 2015 (38) STR 204- 4 Input services availed on the basis of photocopies of invoices (original invoices not provided) 15. The Appellant submits t....
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.... Export Rules. 20. The Appellant submits that Circular No. 111/05/2009- ST dated 24.02.2009 (Page No.236-238) categorically provided that in case of services which generally include knowledge or technique based services, the relevant factor is the location of the receiver is relevant and not the place of performance. It has been clarified that the phrase 'used outside India' is to be interpreted to mean that the benefit of the service should accrue outside India. Thus, in such cases it is possible that export of service may take place even when all the relevant activities take place in India so long as the benefits of these services accrue outside India. 21. The Appellant humbly submits that its case is squarely covered by the aforementioned Circular. 3,84,358/- 26. Vodafone Essar Cellular Ltd. Vs. CCE, Pune; 2013 (31) STR 738- 27. Microsoft Corporation (I)(P) Ltd. Vs. Commissioner of ST; 2014(36) STR 766- 28. Microsoft Corporation (India) Pvt. Ltd. Vs. Commissioner of C. Excise; 2018 (18) GSTL465- 29. M/s Samsung India Electronics Pvt. Ltd. Vs. Commissioner of Central Excise; 2015 (1) TMI 1098- 30. M/s Fanuc India Pvt. Ltd. Vs. CCE & ST; 2....
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.... submissions cited (supra). In this regard, it is pertinent to refer to the judgement of Hon'ble Madras High Court in the case of Commissioner of Service Tax-III, Chennai vs. CESTAT, Chennai cited (supra) wherein the Hon'ble High Court after considering the various rules and the notification No. 5/2006-CE NT dated 14.03.2006 has come to the conclusion that registration of the premises is not a pre-condition for grant of refund. The relevant findings are contained in Para, 8.1 and 8.2 to 15 as under:- "8.1 For the sake of convenience, the necessary extracts of Rule 4 of the 1994 Rules, as also, the relevant parts of Rule 5 of 2004 Rules, are set forth below : "1994 Rules : 4. Registration - (1) Every person liable for paying the service tax shall make an application to the concerned Superintendent of Central Excise in Form ST-1 for registration within a period of thirty days from the date on which the service tax under Section 66B of the Finance Act, 1994 (32 of 1994) is levied : Provided that where a person commences the business of providing a taxable service after such service has been levied, he shall make an application for registration wi....
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....otification in the Official Gazette : Refund amount = (Export turnover of goods + Export turnover of services Total turnover x Net Cenvat credit Where, - (A) "Refund amount" means xxxxx (B) "Net Cenvat credit" means xxxxx (C) "Export turnover of goods" means xxxxx (D) "Export turnover of services" means xxxx Export turnover of services = payments received during the relevant period for export services + export services whose provision.... (E) "Total turnover" means xxxxx (a) xxxxx (b) xxxxx (c) xxxxx (2) xxxxx Provided xxxxx Provided further xxxxx Explanation 1 : xxxxx (1) "export service" means xxxxx (2) "relevant period" means xxxxx Explanation 2 : xxxxx ......" 8.2 Mere perusal of Rule 5 of the 2004 Rules, would, inter alia, show that where a service provider, provides an output service, which is exported, without payment of service tax, he would be entitled to refund of Cenvat credit, as determined by the formula provided in the Rule. 8.3 The formula is not relevant for....
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....Service Tax, Bangalore, are extracted hereafter : "6. The assessee is a 100 per cent export oriented unit. The export of software at the relevant point of time was not a taxable service. However, the assessee had paid input tax on various service. According to the assessee a sum of Rs. 4,36,985/- is accumulated Cenvat credit. The Tribunal has categorically held that even though the export of software is not a taxable service but still the assessee cannot be denied the Cenvat credit. The assessee is entitled to the refund of the Cenvat credit. Similarly insofar as refund of Cenvat credit is concerned, the limitation under Section 11B does not apply for refund of accumulated Cenvat credit. Therefore, bar of limitation cannot be a ground to refuse Cenvat credit to the assessee. 7. Insofar as requirement of registration with the department as a condition precedent for claiming Cenvat credit is concerned, learned counsel appearing for both parties were unable to point out any provision in the Cenvat Credit Rules which impose such restriction. In the absence of a statutory provision which prescribed that registration is mandatory and that if such a registration is not m....
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.... 15. We do not find anything in the aforesaid rules which require registration as a condition or eligibility to claim refund. Even Form-A no where suggests that any such condition must be observed. 20. The judgment of Madras High Court therefore, was clearly rendered in the facts of that case. Be that as it may, we are inclined to accept the view taken by Karnataka High Court considering the fact that in the rules of refund of Cenvat credit, we do not find any such requirement of registration as a condition precedent or eligibility condition for claiming refund." 14. We may, only indicate that the learned counsel for the Revenue has relied upon the judgment of a Division Bench of this Court, in the matter of Commissioner of Central Excise, Coimbatore v. Sutham Nylocots, 2014 (306) E.L.T. 255 (Mad.); the relevant portion of which, for the sake of convenience, is extracted hereafter : "17. Learned counsel for the assessee placed reliance on the decision of Formica India Division (cited supra). The said decision was also pressed into service before the First Appellate Authority and the First Appellate Authority while considering the aspect went into....
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....proach adopted by the Tribunal. 15. In our view, Questions No. 2 and 3 seeks to raise an issue of law, which, already stands covered against the Revenue. We are, in respectful agreement, with the views taken by the Karnataka and Allahabad High Courts, as articulated in their respective judgments to which reference is made hereinabove." Further, we find that the decision relied upon by the Revenue in the case of Commissioner of Central Excise, Coimbatore vs.Sutham Nylocots cited (supra) has been distinguished by the Hon'ble Madras High Court itself in the case of Commissioner of Service Tax, Noida vs. Atrenta India Pvt. Ltd. Cited (supra) and further the Hon'ble Karnataka High court in the case of mPotal India Wireless Solutions Pvt. Ltd. Vs. CST, Bangalore, cited (supra) has consistently held that the registration of the premises is not a pre-condition for availment of cenvat credit and consequently the refund. By following the ratio of the various decisions relied upon by the appellant, we hold that the denial of refund on this ground is not justified. (ii) Now, coming to the second ground that input services availed in the nature of Entertainment Service, Helpde....
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.... the decision of Novozymes South Asia Pvt. Ltd. Cited (supra) wherein the Tribunal has observed in Para 5 and 6 as under:- "5. Coming to the deficiency in the documents, I observe that while applying the provisions of the Statute, officers seem to ignore important aspects. In para 15 of the Order-in-Original, the original authority observed "sub-rule (2) of Rule 9 of Cenvat Credit Rules, 2004, the bill/invoices shall contain the Registration No. of the person issuing, name and address of the person receiving taxable service, description and classification of the taxable service. As these details are not shown in the bill/invoice, hence Cenvat credit is liable to be disallowed. In the show cause notice issued, I find that same are not forthcoming on the invoice on which the credit was availed by the assessee. I have also verified a copy of the above said invoice and found that the above mentioned particulars are not forthcoming on the same". 6. According to Rule 9(2) of Cenvat Credit Rules, the requirement of name and address of the person receiving taxable service is not a mandatory requirement. I reproduce the relevant portion of the Rule 9(2) to make this clear.....
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....t of availing and utilizing credit on Service Tax paid on services from the knowledge of the department. But for observation of the department audit team, the fact of irregular availment of Cenvat credit would have gone unnoticed and resulted in revenue loss to the exchequer...." I am not able to understand what exactly was suppressed by the assessee in this case. The requirement of submission of the documents on the basis of which credit has been taken is no longer in the Statute book. Therefore, the appellant was not required to produce the documents on the basis of which credit has been taken. Hon'ble Supreme Court has already taken a view to the effect that to invoke suppression facts, suppression of facts should be such that they should be ones which are required to be declared in accordance with Statute before the Statutory Authorities. When a document on the basis of which credit was taken is not required to be produced, how suppression of facts can be invoked and on what basis defies imagination. In any case, I find considerable force in the arguments advanced by the learned counsel that before a decision in the case of Cadila Healthcare (supra) by Hon'ble Gujarat ....
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....ression supplementary invoice used in the rules shall also include challan or any other document evidencing payment of additional amount of additional duty leviable under Section 3 of the Customs Tariff Act. 7. The aforesaid rule in our considered opinion nowhere provides that Cenvat credit cannot be availed on the basis of photocopy of the documents especially when the respondents have not disputed the correctness of the contents of the photocopies of the invoices produced by the petitioner. From the perusal of the certificate issued by the Superintendent, Customs and Central Excise, Range-III, Division-I, Ghaziabad, it is evident that the excise duty has been duly paid by the petitioner." Therefore, by following the ratio of the decision of the Hon'ble High Court, we hold that the rejection of refund on the ground of not filing the original invoices is not justified. (v) Coming to the last ground on which the rejection of refund of Rs. 3,84,358/- is made with regard to input services which are utilised for providing output service to foreign affiliates in relation to projects in India. We note that the said services are in the nature of preparation of layouts, desi....