TaxTMI 
TaxTMI 
2024 (1) TMI 333
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.... 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, Work Contract Services and Information Technology Software Services. 2.2 During the period April, 2....
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....f 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, the Appellant filed an Appeal before the Ld. Commissioner(Appeals) bearing No.279/ST/2013 dated 24.12.2013. 2.6 The said Appeal was disposed of by th....
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....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 eligible for refund. Further, refund of Cenvat should not be linked to Cenvat taken in a particular period only [D.O.F. No.334/1/2010-TRU, dated 26-2-2010]. * In Transatlantic Packaging Private Limited, 2012 (28) STR 102 (Tri-Ahmd), it was held that when the admissibility of credit is not under dispu....
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.... 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 service,- (i) used by a provider of output service for providing an output service; or (ii) used by a manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal, and includes services used in relation to modernisation, renovation or repairs of a factory, premises of provider of output service or an office relating to such fa....
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....ve 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 appellants, the appellants have received service of renting of the premises at Plot No. 2A Technology Zone, Sector-126 from M/s. Optiemus Infracom Ltd; and the agreement meant for the purpose clearly states that the premises will be used by the appellants for the purpose of software development and information technology enabled activities and ancillary purposes; that the invoices in question contain the name and address of the appellants and hence are satisfying conditions provided under Rule 9 of CCR, 2004 read with Rule, 4A ....
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.... 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 on such duty]. - (1) Any person claiming refund of any [duty of excise and interest, if any, paid on such duty] may make an application for refund of such [duty and interest, if any, paid on such duty] to the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] before the expiry of [one year] [from the relevant datel [[in manner] as may be prescribed and the such form and application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furn....
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.... 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 service, are correct, and therefore the same are judgment in the case of One Advertising and Communication P. Ltd. v. CCE- 2012 (27) STR 344 (Tri-Ahmd.) Hotel services have been availed for stay of their Chief Executive for the purpose of business and meeting the clients But in the instant case the premises is claimed to be taken on rent for providing output service and in this regard there is legal provision to get the premises registered or incorporated in the registration. Therefore, the decision of Hon'ble Tribunal in the said case is distinguishable fro....
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.... 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 order it is evident that refund of * Rs.4088/- + Rs.1,09,63,679/- + Rs.6,60562/- = Rs.1,16,28,329/- has been disallowed holding that the credit in respect of these was not admissible to them for the reasons stated in the impugned order. * Rs.54,20,341/- has been disallowed holding that the claim is barred by limitation; * Rs.8,01,577/- has been disallowed holding that appellants had made certain domestic clearances which were to be taken into account for determining the amount of refund admissible. 4.4 It is observed that impugned orders have gone beyond the scope of Rule 5 of CENVAT Credit Rules, 2004, which provide....
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....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 Rules, 2004 by jurisdictional authorities. It is, thus, patently obvious that Rule 14 of Cenvat Credit Rules, 2004 is the sole route available for erasure of credit taken at the threshold, or continued thereafter, but is, or has been, rendered ineligible. 5. 'Nexus', as it is generally known, goes beyond the obvious entitlement or disentitlement and is a corollary of intangibility of services that hampers certainty of utilization in the output/output service sought to be circumscribed by deployment of 'includes' and 'business activities such as' to isolate manifest connection. Such 'nexus' should, logically, be a threshold adjudgment owing to irrelevance for manufacture or ....
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.... 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 principles of natural justice, the denial of credit is without authority of law and impugned order is set aside." In case of Responsibility India Business Advisors Pvt. Ltd. [2023 (69) G.S.T.L. 90 (Tri. - Mumbai)] following has been held- 7. The scheme of Rule 5 of Cenvat Credit Rules, 2004 is abundantly clear. To the extent of eligibility, the assessee cannot be denied refund and the disallowed portion, if any, remains in the credit of the assessee for debit of future tax/duty liability. Therefore, denial of refund does not extinguish the credit but restores it in the account. In the impugned order, there is no finding of disallowance and, on the contrary, the denial has been on the ground of ineligibility for Cenvat c....
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....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) This rule shall apply to exports made on or after the 1st April, 2012: Provided that the refund may be claimed under this rule, as existing, prior to the commencement of the CENVAT Credit (Third Amendment) Rules, 2012, within a period of one year from such commencement: Provided further that no refund of credit shall be allowed if the manufacturer or provider of output service avails of drawback allowed under the Customs and Central Excise Duties and Service Tax Drawback Rules, 1995, or claims rebate of duty under the Central Excise Rules, 2002, in respect of such duty; or claims rebate of service tax under the Export of Services Rules, 2005 in respect of such tax. Explanation 1.-For the purposes of this rule,- (1) "export service" means a service which is provided as per the provisions of Export of Se....
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....led 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 output service provider reduced by the amount reversed in terms of sub-rule (5C) of Rule 3, during the relevant period Thus, the Cenvat credit availed on inputs and input services during the relevant period, i.e., the subject quarter for which refund is claimed, as reduced by the amount reversed under Rule 3(5C) of the Rules is considered as 'Net Cenvat credit It is, thus, the total Cenvat credit availed during the particular quarter which is to be considered for determining the amount of refund In terms of the provisions of Rule 5 read with Notification No.27/ 2012-CE(NT), the whole credit availed during the relevant period shall be taken into consideration without regard to the fact whether it pertains to the services received earlier or invoices received earlier. This is not restricted to the services received during the relevant period. The provisions do not refer to the services received but only the credit availed during the....
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....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 turnover, only turnover from the specific premises from where the services have been exported is to be considered. It is the contrary to the contention of the appellant themselves that for determining the Net Cenvat Credit, the Credit admissible in respect of the services received at any of premises should be taken into account. In our view in case of Centralized registration the term Total Turn Over in Rule 5 of CENVAT Credit Rules, 2004 refers to the total turnover of the registrant. To this extent we do not find any fault in the impugned order. 4.8 However we find that Notification No.27/2012-CE (NT) dated 18.06.2012 reproduced earlier at (h) provides that the appellant should have at the time of filing the refund claim should have reversed the credit equivalent to the amount claimed as refund. At (i) it is provided that if the refund allowed is less than the credit reversed than the difference of the credit reversed and refund allowed shall be credited back to the....