2011 (2) TMI 586 - AT - Service Tax

Demand - Business Auxiliary Services and Business Support Services - Rule 5 of Cenvat Credit Rules, 2004 read with Notification No. 5/2006-C.E. (N.T.), dated 14-3-2006 - Cenvat credit - Chartered Accountant s service involved accounting and auditing of the transactions of the assessee - in the case of CST, Delhi v. Convergys India Pvt. Ltd. 2009 -TMI - 34223 - CESTAT, NEW DELHI) - Held that Tribunal allowed credit of service tax paid on real estate agent service, Chartered Accountant s service, asset management service, among others, as input service of the appellant, a call centre - Credit allowed Manpower recruitment and supply service - assessee recruits qualified personnel to render its output service - in the case of CCE, Hyderabad v. Deloitte Tax Services India Pvt. Ltd. 2008 -TMI - 3715 - CESTAT, BANGALORE) - held that the equipment hiring, professional consultation service, recruitment service, security service, telephone service, transport service, training service, facility operation service, courier service, cafeteria service and advertisement service were input for back office services classified under Business Auxiliary Services rendered by the respondents in that case - Credit allowed. As regards the outdoor catering service - in the case of Commissioner of C. Excise, Nagpur v. Ultratech Cement Ltd. 2010 -TMI - 201439 - CESTAT, MUMBAI) - Credit allowed. As regards the general insurance service - credit allowed - Appeal is allowed

Summary

Issues:
Claim of refund of service tax on input services for export of output services.

Analysis:
The case involved appeals filed by M/s. Utopia India Pvt. Ltd. against an Order-in-Appeal denying credit on certain input services for export of output services. The appellants claimed refund under Rule 5 of Cenvat Credit Rules, 2004. The original authority allowed credit for some services but denied credit for others, leading to the accumulation of credit in the appellant's account. The Commissioner (Appeals) upheld the denial of credit for certain services based on a judgment of the Supreme Court in Maruti Suzuki Ltd. case. The main issue was whether the denied input services were used in relation to the provision of output services.

The appellants argued that they were legitimately entitled to claim a refund of the service tax accumulated in their Cenvat account for all input services. They relied on various case laws to support their claim. The learned JDR supported the reasoning of the lower authorities, stating that the entitlement of the services was contested for the first time before the Tribunal.

Upon considering the case records and rival submissions, the judge analyzed each denied input service. For the 'Chartered Accountant service,' it was found that auditing and accounting are included in the definition of input service. The judge referred to a Tribunal decision allowing credit for similar services. Regarding 'manpower recruitment and supply service,' it was established that skilled manpower, especially qualified engineers, were essential inputs for the appellant's services. The judge cited a case where recruitment service was considered an input for back office services.

For 'outdoor catering service,' the judge referred to a High Court judgment stating that if the service tax is borne by the ultimate consumer, the manufacturer cannot take credit. However, as the appellant recovered 50% of the cost from employees, they were entitled to credit for the actual service tax incurred. The judge also allowed credit for 'general insurance service,' 'security services,' 'technical inspection service,' and 'asset management service' after detailed analysis and referring to relevant case laws and precedents.

In conclusion, the judge allowed credit for most of the denied input services, remanding the issue of 'asset management service' back to the original authority for further examination. The appeals were disposed of accordingly.