2025 (7) TMI 348

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....2004. Appellant is a 100% Export Oriented Unit (EOU) and engaged in export of Information Technology Software Services. The appellant had filed refund claim of Rs.61,89,999/- on 11.02.2009 under Rule 5 of CCR, 2004 and the adjudicating authority as per Order-in- Original No.243/2009 dated 18.06.2009 sanctioned the refund for the period from October 2008 to December 2009. Thereafter, it is observed that the actual export was carried out by PSI Data Systems Ltd. and the appellant had entered into 100% contract with them. Accordingly, alleging that M/s. PSI Data Systems Ltd. was providing export of service and the appellants were only acting as an agent, a show-cause notice was issued on 21.01.2010 under Rule 14 of CCR, 2004. Thereafter, as pe....

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....ology Software Services in relation to its contracts with customers outside India. M/s. PSI Data Systems is obliged to allocate qualified persons and resources to perform services and execute the activities according to the appellant's direction, specification and responsibilities such as conducting requirement analysis, designing and developing IT solutions is preparing and conducting test, monitoring project progress, preparing project documentation, etc. Appellant being 100% EOU, does not provide service to domestic companies and could not utilise the service tax accumulated in the credit account and it is an admitted fact that the cenvat credit is attributable to export in terms of provisions of Rule 5 read with Notification No.5/2006-C....

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....t. Ltd.: 2000 (120) ELT 285 (SC) IV. Madras Rubber Factory vs. ACCE: 1981 (8) ELT 565 (Mad.) V. Bridgestone India Private Limited vs. CGST: 2019- TIOL-1956-CE 3.2 The learned counsel further submitted that the yardstick adopted by the appellant while permitting credit and for claiming refund cannot be different and the issue was considered by the Hon'ble High Court of Punjab and Haryana in the case of CST vs. Convergys India Pvt. Ltd.( 2010 (20) STR 166 (P&H), while upholding the decision of the Tribunal, Hon'ble High Court observed that contention on eligibility of services in absence of nexus not acceptable. Once service being used in providing output service not rebutted, the appellant is eligible for rebate as claim....

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.... which ultimately got exported to foreign based party i.e., TSYS, Georgia USA instead of getting it subjected to further improvisation/addition/deletion in the hands of the appellant. Thus, there is no usage of inputs in the hands of appellant and no presumption can be drawn that said inputs were used in for providing output service. The appellant ought to have claimed refund under any other scheme like drawback / rebate and not by claiming refund under the Notification No.5/2006-CE (NT) dated 14.03.2006. Learned AR also made an attempt to distinguish the findings of the Tribunal in the matter of Veena Industries Ltd. (supra) and submitted that in said matter, credit availed by the appellant with respect to its subcontractors raising servic....