2019 (8) TMI 1560 - AT - Service Tax

CENVAT Credit of Service tax - export of services -input services - renting of car parking - cafeteria services - travel services - medica lservices - hotel services - denial on the ground that the appellant did not produce the evidence establishing the nexus/co-relation between the services received by it and the exportation of output services - also denied on the ground that the invoices were issued beyond the prescribed period of six months - HELD THAT - In the case in hand the department has not disputed the fact regarding exportation of the output service by the appellant. Since the input services were used in or in relation to provision of output service exported by the appellant the benefit of refund provided under Rule 5 ibid should be available to it. It is not the case of Revenue that the appellant did not follow the procedures laid down under Rule 5 read with the notification issued there under - The said Rule does not provide any stipulation or embargo that one-to-one co-relation or nexus has to be established between the input and exported output services - credit not to be denied on this ground. Denial on the ground that the SCN issued after 6 months period - period from October 2014 to September 2015 - HELD THAT - Insofar as the period of availment of Cenval credit of service tax paid on the input services the fifth proviso appended to sub-rule (7) of Rule 4 ibid mandated that the credit shall not be allowed after six months of the date of issue of the documents specified in sub-rule (1) of Rule 9 ibid. The period of six months was substituted for one year vide Notification No. 6/2015 C.E. (N.T.) dated 01.03.2015. The effect of substitution is that if the credit has been taken within one year from the date of the issuance of the invoice then such credit cannot be denied to the assessee. Under the amended provisions of Rule 4 ibid denial of the benefit of the Cenvat credit for the entire period of dispute is not proper and justified - matter should be examined at the original stage for ascertaining the period within which the credit was availed by the appellant in respect of the disputed invoices. If the credit has been availed within a period of one year the Cenvat benefit should be extended to the appellant. Appeal allowed in part and part matter on remand.

Summary

Issues:
Refund benefit under Rule 5 of Cenvat Credit Rules, 2004 read with Notification No. 27/2012 - denial by department due to lack of evidence establishing nexus between input and output services and issuance of invoices beyond prescribed period.

Analysis:
The appellant, engaged in exporting Information Technology Services, availed Cenvat credit for services procured from vendors both inside and outside India. The appellant claimed refund benefit under Rule 5 of Cenvat Credit Rules, 2004 for services procured domestically. The department partly allowed refund applications but denied benefits for certain services like car parking, cafeteria, travel, medical, and hotel services, citing lack of evidence establishing nexus and invoices issued beyond six months. The appellant argued that direct nexus is not required as per statute and cited relevant judgments and a CBEC circular supporting their claim.

The Tribunal noted that the department did not dispute the exportation of output services by the appellant and observed that Rule 5 does not mandate a one-to-one correlation between input and output services. The CBEC circular and precedent cases supported this view. Regarding the period for availing Cenvat credit, the Tribunal highlighted the amendment substituting 'six months' with 'one year' for credit availment, ensuring credit cannot be denied if taken within one year from invoice issuance. The Tribunal directed a re-examination at the original stage to ascertain if credit was availed within one year for disputed invoices.

Consequently, the impugned order was set aside, and the appeals were allowed in favor of the appellant for denying refund benefits based on nexus establishment. The appeal concerning invoices issued beyond the prescribed period was remanded to the original authority for a decision on merit following the new one-year credit availment period. The appeals were disposed of accordingly.