2015 (2) TMI 194 - AT - Service Tax

Denial of refund claim - CENVAT Credit - refund claim of unutilized Cenvat Credit accumulated in their Cenvat Credit account under Rule 5 of the Cenvat Credit Rules 2004 - refund claims were denied on account of the fact that services rendered by the appellant do not qualify under Rule 3 (1) (iii) read with Rule 3(1) (ii) of the Export of Service Rules 2005 and for the period April 2010 to March 2011, Certain services are not qualified as input services on which Cenvat Credit has been availed by the appellant as per Rule 2(l) of the Cenvat Credit Rules, 2004 and for certain services the appellant has failed to provide invoices to take Cenvat Credit - held that - Cenvat Credit during the period April 2010 to March 2011 has been denied for want of invoices which have been verified by us and found to be proper. Therefore, we hold that appellants are entitled for the said Cenvat Credit. We further find as contended by the Ld. AR that the adjudicating authority has not considered the issue that input service on which the Cenvat Credit has been availed by the appellant do qualify as input service as per Rule 2(l) of the Cenvat Credit Rules, 2004. Therefore, for the limited purpose we remand the matter to the adjudicating authority to ascertain the fact whether the input services on which Cenvat Credit has availed by the appellant do qualify as input service as per Rule 2(l) of the Cenvat Credit 2004, in the light of the decision of the Hon'ble High Court of Bombay in the case of Ultratech Cement (2010 (10) TMI 13 - BOMBAY HIGH COURT). The adjudicating authority shall examine the documents to ascertain the admissibility of the Cenvat Credit on input services as discussed above within 60 days of the production of all records and thereafter shall sanction the admissible of refund claim of the appellants - matter remanded back - Decided in favour of assessee.

Issues involved:
- Rejection of refund claim by lower authorities
- Classification of services under Export of Service Rules 2005
- Denial of Cenvat Credit for specific periods
- Qualification of input services for Cenvat Credit

Issue 1: Rejection of refund claim by lower authorities

The appellants appealed against the rejection of their refund claim by the lower authorities, who held that their services did not qualify for export of service under the Export of Service Rules 2005. The appellants provided investment advisory services to a company located outside India, contending that the services fell under the category of Export of Service as per Rule 3(1)(iii) of the Export of Services Rule, 2005. The denial of refund claims was based on the services not meeting the criteria specified in the rules. The appellant argued that they were entitled to the refund based on previous tribunal decisions and challenged the denial of their claim.

Issue 2: Classification of services under Export of Service Rules 2005

The appellants claimed that their services qualified as export of service under Rule 3(1)(iii) of the Export of Service Rules 2005 as the recipient of the service was located outside India and the service was used outside India. They cited previous tribunal decisions to support their argument and contested the denial of their refund claim based on circulars and rules. The appellate tribunal agreed with the appellants, holding that they were entitled to the refund of the accumulated unutilized Cenvat Credit as per Rule 5 of the Cenvat Credit Rules 2004.

Issue 3: Denial of Cenvat Credit for specific periods

The denial of Cenvat Credit for the period April 2010 to March 2011 was based on the absence of invoices against which the credit had been taken. The appellants produced the invoices before the lower authorities, but they were not considered. The appellate tribunal verified the invoices and found them to be proper, ruling that the appellants were entitled to the Cenvat Credit for the said period. The matter was remanded back to the adjudicating authority for verification purposes regarding the qualification of input services for Cenvat Credit.

Issue 4: Qualification of input services for Cenvat Credit

The appellants argued that the input service credit availed by them qualified as per Rule 2(l) of the Cenvat Credit Rules 2004, citing relevant court decisions. The appellate tribunal agreed that the input services on which the Cenvat Credit had been availed by the appellants needed further examination by the adjudicating authority to determine their qualification as input services as per Rule 2(l) of the Cenvat Credit Rules 2004. The matter was remanded to the adjudicating authority for this purpose, with a directive to sanction the admissible refund claim of the appellants within a specified timeframe.

This detailed analysis covers the issues involved in the legal judgment, addressing the rejection of refund claims, classification of services under the Export of Service Rules 2005, denial of Cenvat Credit for specific periods, and the qualification of input services for Cenvat Credit.

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