TaxTMI 
TaxTMI 
2023 (9) TMI 655
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 Rejection Appellant's Submissions Amount (INR) Relevant Case Laws 1. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stration 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. CESTAT, Chennai; 2017 (3) GSTL 45 (Mad.)- 5. Commissioner of Service Tax, Noida Vs. Atrenta India Pvt. Ltd; 2017 (48) STR 361 (All....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r 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; b. It is an inclusive definition and not an exhaustive one; c. Usage of word 'used' brings those services within the fold of 'input services' which facilitate the provider to render output services; ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted 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 that as long as the input services have been received and accounted for, and payments against the same have been made, the CENVAT Credit cannot be denied on the ground that original invoices were not filed or credit availed on the basis of photocopies. 16. The Appella....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t 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; 2020 (1) TMI 316 Total 1,56,34,321/- Common grounds against rejection of refund 22. The appellant submit that it is trite law that substantive benefits cannot be denied on account of procedural lapses. 23. It is settled law that department is bound by its own circulars. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nclusion 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 within a period of thirty days from the date of such commencement : Provided further that a person liable for paying the service tax in the case of taxable services referred to in sub-section (4) or sub-section (5) of Section 66 of the Finance Act, 1994 (32 of 1994) may make an application for registration on or before the 31st day of December, 1998 : Provided also that a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sion.... (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 our purposes of adjudication of the issue raised in the instant appeal. 8.4 What is relevant to note is that Rule 5 of the 2004 Rules does not stipulate registration of premises as a necessary prerequisite for claiming a refund. 8.5 Insofar as the Assessee in this case, is concerned, it had obtained registration of its premises way back on 23-1-2009. The record shows that allegation of non-registration of premises relates to another building, which was taken on lease by the assessee and is located in Alwarpet, Chennai. Concededly, services were exported to a overseas Company, from this building which was n....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d 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 made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law. Therefore, said finding recorded by the Tribunal as well as by the lower authorities cannot be sustained. Accordingly, it is set aside." 12. Since, this view, as indicated above, has been reiterated by the Karnataka High Court in the judgment rendered in the case of Commissioner of Service Tax v. Tavant Technologies India Pvt. Ltd., to avoid prolixity, the observation made in the said case are not extracted. 13. However, the same view has been taken by the Allahabad High Court in its ju....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ise, 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 the factual issue and pointed out that the assessee had not obtained Central Excise Registration Certificate while manufacturing industrial fabrics and had not followed any Central Excise procedural formalities while clearing such industrial fabrics and this aspect was not disputed by the assessee. Therefore the First Appellate Authority held that the assessee had not fulfilled the several conditions stipulated statutorily such as duty paid nature of the inputs, use of the duty paid inputs in the manufacture of dutiable finished goods to substantiate their claim for Cenvat credit. After taking note of the decision in the case of Formica India Division (cited supra), the First Appellate Authority pointed out that the assessee had not satisfactorily explained before the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation 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, Helpdesk Services, Coffee Vending Machine and hospitality services, Gold Resort Services, Event Management, Catering, Pandal and Shamiana Services, Lawn Services, Insurance Services and Accounting and Audit Services in relation to filing of refund and insurance services relating to employee health scheme are not being admissible as these input services have no nexus with output services. In this regard, we find that the appellant has relied upon by the various decisions and by going through these decisions, we find that each of the impugned services has been held to be input service as the same is availed in connection with the business and rendering of output service. Further, we find that the definition of input service as provided under Rule 2(l) of CCR, 2004 mean any service used by a provider of taxable service for providin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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. "Provided that the said document does not contain all the particulars but contains details of duty or Service Tax payable, description of the goods or taxable service, assessable value, central excise or Service Tax Registration No. of the person issuing the invoices as the case may be, the name and address of the factory or warehouse or premises of first or second stage dealers or provider of taxable service......" From the above, it becomes clear that the name and address of the person receiving the taxable service is not a mandatory requirement. Secondly I also find that even verification of documents has not been done by the original authority properly and on going through the invoice produced by the appellants before me, I find that full name and address of the service receiver, the nature of service provided, Registration No. of the service ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....it 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 High Court was rendered, there was a view prevailing that credit is admissible in respect of service rendered by commission agent. In fact, there is a Circular issued by the Board where such a view has been taken. Under these circumstances, extended period could not have been invoked in this case. The discussion above would show that on merits as well as on limitation, the impugned order cannot be sustained. Accordingly, the impugned order is set aside and appeal allowed with consequential relief if any to the appellants question and is in dispute before him. Otherwise there is no indication forthcoming as to whether the Commissioner (Appeals) had a look at the invoice or not. This is the sole ground on the basis of which he has disallowed the Cenvat credit. After considering the invoice, I am not able to find any deficiency in the bill/invoice, I have to take a view that Cenvat credit has bee....