2010 (4) TMI 450 - AT - Service Tax

Refund - The dispute has arisen in respect of refund claims filed by the assessee under the provisions of Rule 5 of Cenvat Credit Rules 2004 in respect of three months namely June, July and August 2007. Not necessary that refund should be filed in same month when credit taken. Commissioner allow the appeal filed by revenue contending that no refund was admissible to the assessee in view of the fact that Cenvat Credit was not taken on the goods in the month in which claim as made.

Summary

Issues:
Refund claims under Rule 5 of Cenvat Credit Rules 2004 for June, July, and August 2007. Revenue's appeal against the refund claims. Assessee's appeal against rejection of refund on various grounds.

Analysis:
The revenue contended that no refund was admissible to the assessee as cenvat credit was not taken in the same month as the export. They also challenged the Commissioner's observations on revenue neutrality and conditions for refund based on turnover ratios. The revenue further argued against certain credits like the commission for business acquisition outside India and credits on documents addressed to the Head Office without proof of relation to the Mysore unit.

The assessee appealed the rejection of refund based on issues like invoices raised by CWC, admissibility of credit on CHA service, and credit availability for exports to SEZ. The Tribunal found that the revenue's contention on the timing of cenvat credit in relation to exports was incorrect. The Tribunal also noted that the relevant notification was not proposed to be amended retrospectively and agreed with the Commissioner that credits could be claimed in the preceding or succeeding month of export.

Regarding specific issues, the Tribunal found that credit for consultancy services for business acquisition outside India was not admissible as the business acquisition had not yet occurred. Excess credit taken due to invoice details was allowed as Passage Cargo acted as a pure agent. Credits for CHA services and servicing of Indica car were deemed admissible based on legal precedents. The revenue's argument against credit on documents addressed to the Head Office was rejected due to lack of evidence. The issue of credit for service tax on goods supplied to SEZ was found to be covered by previous Tribunal decisions.

In conclusion, the revenue's appeals were rejected, and the assessee's appeals were allowed except for the credit related to consultancy services for business acquisition outside India.