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2024 (1) TMI 333
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....)HON'BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Thousand Four Hundred and Eighteen Only) to M/s Samsung India Electronics Pvt. Ltd., B-I, Sector-81, NOIDA under Rule 5 of CENVAT Credit Rules, 2004 read with Notification No.27/2012-CE dated 18.06.2012. However, in exercise of the powers conferred on me by virtue of Section 87 of the Finance Act, 1994, I hereby order to appropriate an amount of Rs.2,04,23,418/- (Rupees Two Crore Four Lacs Twenty Three Thousand Four Hundred and Eighteen Only) [Rs.1,03,65,403.00 as Service Tax + Rs.1,00,58,015.00 as Penalty] so sanctioned to the said M/s Samsung India Electronics Pvt. Ltd., B-I, Sector 81, NOIDA, against the demand confirmed vide Order In Original No.34/Commr/Noida/2012-13 dated 19.10.20122 passed by the Commissioner, Central Excise, Noida." 2.1 The Appellant is having Centralized Registration No. AAACS5123KST026 and is engaged in providing taxable services classifiable as "Management or Business Consultant Services, Consulting Engineer Services, market Research Agency Services, Commercial Training & Coaching Services, Maintenance and Repair Service, Business Support Service, IPR Services other than Copy Right Services, ....
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....75 and 1092 of the Annexure were made prior to 19.02.2012 whereas the instant refund claim was filed on 19.02.2013, therefore, claim of Rs.54,20,341/- involved, appears time barred as the same was not claimed within one year from the payment thereof (v) Invoices mentioned at S. No. 980 and 986 of the Annexure pertain to renting of immovable property service but address of the premises in respect of which the rent was paid is not mentioned on the said invoices without which admissibility of Cenvat credit can't be ascertained. Therefore, Cenvat credit/refund claim of Rs.6,60,562/- involved appears inadmissible to the exporter. (vi) The exporter have shown total exporter turnover of Rs.96,66,04,676/- and total domestic turnover of Rs.3,79,37,242/- in their ST-3 Return for the period from April'12 to JuneRs. 12. On the basis of total irregular Cenvat credit as detailed above and as per formula prescribed under Notification No.27/2012- CE (NT) dated 18.06.2012, refund of Rs.1,78,50,725/- is liable for rejection 2.5 The Show Cause Notice was adjudicated by the Ld. Assistant Commissioner vide Order-in-Original dated 28.10.2013. Aggrieved by the Order-in-Original, ....
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....ia Pvt. Ltd. [2016 (43) S.T.R. 294 (Tri. - All.)] • The Refund Claim of Rs.54,30,341/- is Not Bared by Limitation and shall be Allowed. The whole basis of rejection of refund claim of Rs.54,20,341/- is that the same pertains to the invoices of input services issued prior to one year before the date of filing of refund claim on 19.02.2013, i.e., 19.02.2012 and, thus, the refund claim pertaining to this amount is time barred. • The time limit governs the filing of the refund claim and the same shall be filed within one year from the relevant date, i.e. the relevant date for purposes of deciding the time limit for consideration of refund claims under Rule 5 of the CCR may be taken as the end of the quarter in which the FIRC is received. However, this time limit, in no way, governs or relates to the availment of credit by an assessee. The assessee has availed credit in compliance of the provisions of the Credit Rules during a relevant quarter, the refund thereof shall be admissible to him provided the claim of refund is filed within one year from the relevant date. As no one to one co-relation is required, once the credit is admissible, the appellants are elig....
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....lows for upholding the rejection of refund claim for an amount of Rs.1,78,50,247/-. "5.3 It is further observed that a part of the claim of refund of service tax amounting to Rs.4088/- paid on the charges of Pantry Boys has been rejected under the impugned order. While rejecting this amount of refund of service tax the adjudicating authority has observed that this service is for the convenience of the employees and is no way connected to providing to output service. The appellants contested hat they are engaged in the business of providing IT services and for providing such a service the appellants are required to set up an office and refreshment to its clients as well as employees. For this purpose a pantry has been set up in the office and thus services provided by the pantry boys are necessary for the provision of output service of the appellants; and the same has been utilised in relation to business which qualify as input service as defined under the input service. Before discussing the issue 1 will check whether such service has been included in the definition of the input service. The definition of the input service is reproduced below: (l) "input service" means any....
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.... clearly excludes services which are for the use or consumption of individual employees. In their appeal the appellants detailed the working of the Pantry Boys, which are for the individuals. Further, I am of the opinion that the serving of water, tea/coffee to an individual is no way essential when water dispensers and tea/coffee vending machines are available in all major office. Therefore, I agree with the findings of the adjudicating authority, hence I uphold the rejection of refund amounting to Rs.4,088/-. I observe that facts of the cases relied upon the appellants are different from the appellants case therefore the ratio of the judgments of the relied case laws is not applicable in the present case 5.5 With regard to rejection of the a part of refund claim of Rs.1,09,63,679/- under the impugned order, on the ground that the invoices on which credit was availed were not addressed to their registered premises and thus the credit was not admissible under Rule 9 of the CRR, 2004 read with Rule 4 of the Service Tax Rules 1994, the appellants pleaded that there is no dispute that the service qualify as input service and the service in question has been received by the ap....
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....ng the relevant period, i.e. April, 2012 to June, 2012; and therefore, the refund could be claimed only during the relevant quarter. The provisions of these Rules do not provide for any time limit on taking of the credit. In this regard the appellants placed reliance on the Central Excise Manual issued by CBEC where it has been clarified that the credit may be taken immediately on the receipt of inputs in the factory, however the assessee would not be denied the credit if it is not taken immediately on the receipt of inputs. I find that the refund claim has been sought in terms of Rule 5 of CCR read with Notification No.27/2012-CE dated 18.06.2012. The para 3 (b) of the said notification is read as under: "(b) The application in the Form A along with the documents specified therein and enclosures relating to the quarter for which refund is being claimed shall be filed by the claimant, before the expiry of the period specified in section 11B of the Central Excise Act, 1944 (1 of 1944)." To find the period specified, the Section 11 B of the Central Excise Act, Act, 1944 is reproduced below.: SECTION [11B. Claim for refund of [duty and interest, if any, paid....
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.... working. Thus, the new premises is also used by the appellants for provision of its output service, i..., information technology software service, hence, the said services received by the appellants duly qualify the definition of input service. It is noticed that the appellants observed they do not invoices and lease agreement. From the submitted copies of relevant contain address of premises to which invoices it is they pertain. The copy of lease agreement, submitted by the appellants reveals that 2 conference halls and 4 meeting rooms situated at Steller Crest Business Centre, 1st Floor, C-25, Stellar IT Park, Sector 62, Noida (UP) were taken on rent by the appellants. 1 find that the copies of invoices and lease agreement collectively do not deduce that the premises were used for providing output service by the appellants. If the appellants had utilised that premises, taken on rent, for providing their output service, then, such premises should have been get incorporated in their registration. I am therefore, of the view that the adjudicating authority's findings that it cannot be ascertained that the premises in question was used for providing output upheld,. In the relied....
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.... 3 Commercial Training 0 4 Consulting Engg 0 5 IT Software 0 6 IPR 0 7 Maintenance & Repair 30926545 8 Management Consultants 0 9 Market Research Agency 0 10 Renting of Immoveable Property 1518140 11 Sponsorship Service 0 12 GTA 0 13 Work Contract 3846152 Total 37937242 Thus, I find that the adjudicating authority has taken correct value of services provided by the appellants in DTA and the amount of refund has been ascertained in accordance with the formula prescribed under the said Notification for the purpose. find that the appellants claim is false. The appellants are hereby warned not to plead such false claim contrary to the facts and the figures available in their record." 4.3 From the above it is observed that refund claim filed by the appellant for the amount of Rs.3,82,74,143/- has been modified by the original authority to the extent of allowing the Refund for Rs.2,04,23,418/- and rejecting the refund for the amount of Rs.1,78,50,247/-. No appeal has been filed by the revenue for the refund amount held admissible to the appellant. From the impugned ....
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....In case of Deloitte Global Financial Advisory India Pvt. Ltd. [2023 (73) G.S.T.L. 231 (Tri. - Mumbai)] following has been held: 4. It is from Rule 3 of Cenvat Credit Rules, 2004, subject to Rule 4 therein, that a central excise or service tax assessee gets to appropriate credit of tax charged on procurement of goods and services which is reported to the jurisdictional authorities in the prescribed returns who are, then, enabled to recover credit that, according to them, is not within entitlement under the authority of Rule 14 of Cenvat Credit Rules, 2004. One of the determinants of entitlement is utilization of procured goods or services in the manufacture of dutiable goods or rendering of taxable services and it may not always be possible for manufacturers and service providers to be able to segregate so at the threshold, or account for at the time of consumption, the ultimate deployment of, particularly, services and, in acknowledgement thereof, Rule 6 of Cenvat Credit Rules, 2004 offers different avenues for reversal on actual, or mathematically approximate, segregation on their own initiative. Failure to voluntarily reverse empowers invoking of Rule 14 of Cenvat Credit....
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.... input service, rejected the refund which is not permissible, but the Revenue is of the view that the credit is not admissible. The first step is to a show cause notice invoking Rule 14 of the Cenvat Credit Rules, 2004 for denial of the Cenvat credit. Then only the refund can be rejected which was not done. Obviously the refund claim cannot be rejected by disputing the admissibility of the input services as held by this Tribunal in Warburg Pincus India Pvt. Ltd. v. CST-I, Mumbai - 2018-TIOL-1229-CESTAT-MUM. 8. Similar stand was adopted by the Tribunal in Commissioner of CGST, Mumbai v. Citicorp Services India Pvt. Ltd. thus : '4.4. ....... Further, the correctness of availment of Cenvat Credit at the stage of filing of refund claim cannot be questioned, since the statute deals with the situation differently.' It is seen from the impugned order that no such notice was issued to the appellant herein. The preliminary objections to the refund limited itself to a few objections that appear to have been responded to and none of those have proposed that the said amount of credit was to be recovered. In the absence of this critical requirement to comply with prin....
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.... means the value of final products and intermediate products cleared during the relevant period and exported without payment of Central Excise duty under bon d 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 advance in any period prior to the relevant period -advances received for export services for which the provision of service has not been completed during the relevant period; (E) "Total turnover" means sum total of the value of - (a) all excisable goods cleared during the relevant period including exempted goods, dutiable goods and excisable goods exported; (b) export turnover of services determined in terms of clause (D) of sub-rule (1) above and the value of all other services, during the relevant period; and (c) all inputs removed as such under sub-rule (5) of rule 3 against an invoice, during the period for which the claim is filed. (2....
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....he time of making the claim. (i) In case the amount of refund sanctioned is less than the amount of refund claimed, then the claimant may take back the credit of the difference between the amount claimed and amount sanctioned. 3.0 Procedure for filing the refund claim. - (a) The manufacturer or provider of output service, as the case may be, shall submit an application in Form A annexed to the notification, to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as the case may be, in whose jurisdiction,- (i) the factory from which the final products are exported is situated. (ii) the registered premises of the provider of service from which output services are exported is situated. (b) The application in the Form A along with the documents specified therein and enclosures relating to the quarter for which refund is being claimed shall be filed by the claimant, before the expiry of the period specified in section 11B of the Central Excise Act, 1944 (1 of 1944). Rule 5 defines Net Cenvat credit to mean total Cenvat credit availed on inputs and input services by the manufacturer or the ou....
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....562/- + Rs.54,20,341/- = Rs.1,70,48,670/- for determining the "Net Cenvat Credit", in the formula prescribed under Rule 5 of the CENVAT Credit Rules, 2004. Thus the Net Cenvat Credit for the application of this formula should have been Rs.3,82,73,665/- and eligibility to refund determined ACCORDINGLY. 4.7 For determining the eligibility to refund revenue has observed that appellant had exported services of Rs.96,66,04,676/- during the relevant period and the total domestic turnover of the Appellant is Rs.3,79,37,242/ -Further, in terms of formula prescribed under Notification No.05/2006-CE(NT) dated 14.03.2006, the refund admissible to the Appellant is as per the impugned order is Refund of Cenvat Credit = Export Turnover X Total admissible credit /Total Turnover = 966604676 x 21224995/1004541918 = Rs.2,04,23,418/- However in terms of value of Net Cenvat Credit, determined above the eligibility to refund shall be as follows: Refund of Cenvat Credit = Export Turnover X Total admissible credit /Total Turnover = 966604676 x 38273665/1004541918 = Rs.3,68,28,233/- We do not agree with the contention of the appellant to the effect that for computing the total ....