2015 (8) TMI 1068 - AT - Service Tax

Denial of refund claim - Unutilized CENVAT Credit - Export of service - Embroidery Software development - rejection of refund claim that classification of the output services are not as per the ST-3 - Held that - at the stage of claiming credit, the same was not disputed on account of use of these input services in provision of Embroidery Software Service. Once credit is not objected at availment stage, it is not permissible for the Revenue to challenge the same at the stage of processing refund under Rule 5 of Cenvat Credit Rules. - The entire refund claim in dispute is accordingly held allowable for both the periods - Decided in favour of assessee.

Summary

Issues:
- Denial of refund claim for services exported out of India
- Classification of services under 'Business Auxiliary Service' and 'Management Consultancy Service'
- Rejection of refund claim based on description of services and non-conformity with Service Tax Rules

Issue 1: Denial of refund claim for services exported out of India

The appellant, engaged in providing services under 'Business Auxiliary Service' and 'Management Consultancy Service,' applied for a refund claim for the periods from April 2009 to June 2009 and July 2009 to September 2009. The appellant exported all its services out of India and claimed the refund as they were unable to utilize the Cenvat Credit during the said periods. The refund claim was partially rejected by the Assistant Commissioner based on discrepancies in the description of services and non-conformity with Service Tax Rules. The appellant argued that the services qualified as export of services under the Export of Service Rules, 2005, and should be eligible for a refund. The Commissioner (Appeals) allowed further refund for one period but disallowed the refund for the other, citing discrepancies in the application form. The Tribunal, after considering the submissions, held that the appellant was entitled to the refund claim for both periods as the credit was not disputed at the availment stage, and the Revenue had previously accepted similar refund claims for the same services. The Tribunal allowed the appeals and held the entire refund claim allowable for both periods.

Issue 2: Classification of services under 'Business Auxiliary Service' and 'Management Consultancy Service'

The appellant classified the services provided, such as 'Embroidery Software development,' as 'Business Auxiliary Service' and 'Management Consultancy Service.' The dispute arose when the refund claim was rejected partially based on the classification of services and discrepancies in the application form. The appellant contended that the services were taxable output services exported out of India, qualifying for a refund under the Export of Service Rules, 2005. The Commissioner (Appeals) considered the submissions but disallowed a portion of the refund claim, stating that the services were reported as 'final products' in the application form, making them ineligible for a refund. The appellant argued that the services were provided to third parties on behalf of clients and should be considered under 'Business Auxiliary Service.' The Tribunal, after hearing both parties, held that the appellant was entitled to the refund claim for the services provided, as they were exported out of India and the credit was not disputed at the initial stage. The Tribunal allowed the appeals and granted the refund claim for both periods.

Issue 3: Rejection of refund claim based on description of services and non-conformity with Service Tax Rules

The rejection of the refund claim was based on discrepancies in the description of services provided by the appellant and non-conformity with Service Tax Rules. The Assistant Commissioner disallowed a portion of the refund claim due to discrepancies in the invoices and the absence of Service Tax Registration numbers. The Commissioner (Appeals) further rejected a part of the refund claim, citing discrepancies in the application form. The appellant argued that the services provided were eligible for a refund as they were exported out of India and met the criteria under the Export of Service Rules, 2005. The Tribunal considered the contentions of both parties and held that the appellant was entitled to the refund claim for the input services used in 'Embroidery Software development,' as the credit was not disputed initially, and similar refund claims had been accepted by the Revenue previously. The Tribunal allowed the appeals and held the entire refund claim allowable for both periods.

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