2017 (4) TMI 992 - AT - Service Tax

100% EOU - Refund claim - rejection on the ground that Information Technology Service rendered by the respondent was excluded from the scope of BAS and hence not liable to tax and that the services rendered were not covered within clauses (i) to vii) of the definitions of BAS u/s 65(19) of the FA 1994 - Held that - even though the export of software is not a taxable service but still the assessee cannot be denied Cenvat credit and that limitation u/s 11 B does not apply for refund of accumulated Cenvat credit - The services referred do not appear to fall within the category of BAS but fall under the category of IT services - it appears that the above aspects were not examined by the lower authority - appeal allowed by way of remand.

Summary

Issues:
Department's appeal against Orders-in-Appeal regarding refund claims for unutilized credit under BAS for exported services.

Analysis:
The department filed appeals challenging the Orders-in-Appeal rejecting refund claims for unutilized credit related to services exported under BAS. The respondent-assessees claimed to have exported services under BAS and had received various input services in India. The original authority rejected the refund claims stating that the services rendered were not covered under the definition of BAS. However, the Commissioner (Appeals) held that the activities fell under "BAS" and were eligible for Cenvat credit refund under Rule 5 of Cenvat Credit Rules 2004.

The department contended that the services rendered were Information Technology Services (ITS) and not within the scope of BAS. They relied on a previous CESTAT decision and argued that the services fell under ITS, which was not taxable under BAS during the relevant period. They emphasized the declaration made in Softex forms, certifying the exports as "computerized software or information technology enabled services."

On the other hand, the respondent's counsel argued that both taxable and non-taxable services were eligible for refund under Rule 5 of Cenvat Credit Rules 2004. They cited various judgments supporting their position, including the mPortal case and decisions from different High Courts. They highlighted that the services provided were IT services and could also qualify as Business Support Services.

Upon hearing both sides, the Tribunal analyzed the definition of Business Auxiliary Service (BAS) under Section 65(19) of the Finance Act 1994. It noted that the services provided by the respondents were in relation to the provision of service on behalf of the client, falling under BAS. However, considering the arguments and previous judgments cited, the Tribunal decided to set aside the impugned orders for fresh adjudication. It directed a reevaluation of all aspects, including the nature of services provided and the applicability of relevant judgments, providing the respondents with a reasonable opportunity to submit additional evidence if necessary.

In conclusion, the Tribunal allowed all appeals by remanding the case for further examination, considering the nuances of the services provided and the legal precedents cited by both parties.