2015 (2) TMI 477 - HC - Service Tax

Refund claim - Whether the Tribunal committed error in applying and extending the provisions of Rule 5(1)(D) of C.C.R. 2004 for the period prior to 17.3.2012; though Clause (D) of Rule 5(1) of C.C.R. 2004 is inserted later on - Held that - Once it is 100% Export Unit, all expenses for such technical, testing and analysis services would be a part of the turn-over and the services exported cannot be separately connected on the ground as sought to be canvassed. - substantial questions of law as sought to be canvassed would not arise for consideration in the present appeals. It may also be recorded that the questions formulated by the Revenue are, as such, inter-connected, but based on the principal contention that unless it is established that a particular service was exported and foreign exchange was realized, the amount pertaining to technical, testing and analysis services by connecting therewith, the services exported would not be available. - There is no change in the provisions as it existed by Circular and subsequently incorporated in the Notification. Therefore, no such question would arise as sought to be canvassed. - Decided against Revenue.

Summary

Issues:
1. Application of Rule 5(1)(D) of C.C.R. 2004 prior to 17.3.2012
2. Verification of foreign exchange receipts for Technical Testing and Analysis service
3. Refund on Credit Notes without service provision or foreign exchange receipts

Analysis:
1. The primary issue in this case revolves around the application of Rule 5(1)(D) of C.C.R. 2004 prior to 17.3.2012. The Tribunal allowed the appeals, leading to the formulation of substantial questions of law by the Revenue. The Tribunal's finding emphasized the calculation of refund as per the prescribed formula under the Cenvat Credit Rules, 2004. The Tribunal's decision relied on the definition of 'Export turnover of services' and 'Total turnover' to determine the admissibility of the refund. The appellant contended that all unutilized service tax credit pertaining to exported services should be refundable under Rule 5 of the Cenvat Credit Rules, 2004, irrespective of the presence of exempted services in the domestic tariff area. The Tribunal's decision was supported by a similar view taken by CESTAT Mumbai in a related case, strengthening the Assessee's position.

2. The second issue concerns the verification of foreign exchange receipts for Technical Testing and Analysis services to determine the eligibility for a refund. The appellant argued that for Cenvat Credit, it was essential to establish that foreign exchange was earned concerning payments for such services. However, the Court rejected this contention, asserting that as a 100% Export Unit, all expenses related to technical services would be part of the turnover. The Court emphasized that expenses for technical services cannot be separately connected when calculating the total turnover for exported services. The Court concluded that the appellant's argument lacked merit, highlighting the interconnected nature of the questions raised by the Revenue.

3. The final issue addresses the refund on Credit Notes issued by the Assessee without providing services or receiving payments in foreign exchange. The Tribunal's decision, supported by previous judgments, emphasized that the presence of exempted services in the domestic tariff area does not impact the admissibility of refunds under Rule 5 of the Cenvat Credit Rules, 2004. The Court found no substantial questions of law that warranted interference with the Tribunal's order, ultimately dismissing all appeals on the grounds of meritlessness. The judgment underscores the consistent application of the existing provisions without necessitating any changes based on circulars or notifications, leading to the dismissal of the appeals.