2015 (9) TMI 1090 - AT - Service Tax

Refund of CENVAT credit - Export of Information technology software services - Eligible input services - duty paying documents - order beyond the scope of SCN - Monitory limit of adjudicating officer - Held that - The proper course to adopt was to hold up the rebate claim issue a show-cause notice proposing to deny the CENVAT credit and that has to be a separate proceedings since the total amount proposed to be denied was in excess of the adjudication powers of the concerned authority. If it was within the power of concerned authority one could take a view that the Assistant Commissioner did not exceed his powers in compiling the show-cause notice denying the CENVAT credit while considering the rebate claim. - Therefore the action by the Assistant Commissioner cannot be sustained. Nevertheless I also find that it cannot be said that these services have no nexus. It was submitted that the hotel bills related to the training of the employees which is definitely an input service covered in the definition. As regards air travel there are several decisions taking a stand that service tax credit in respect of air travel of the employees for the business purpose is admissible as credit. As regards employees insurance Hon ble High Court of Karnataka in the case of CCE Vs. Stanzen Toyotetsu Ltd. 2011 (4) TMI 201 - KARNATAKA HIGH COURT has held that credit is admissible. Further repair of vehicles also cannot be said to be unrelated to the output service. Therefore on merit also I find that CENVAT credit cannot be said to be inadmissible and therefore the benefit has to be given to the appellants. - Decided in favour of assessee.

Summary

Issues:
1. Claim for rebate of CENVAT credit on various input services under Notification No.11/2005-ST.
2. Rejection of rebate claim on grounds of inadmissibility of CENVAT credit on specific services.
3. Exceeding adjudication powers by the Assistant Commissioner in denying CENVAT credit.
4. Verification requirements for rebate claim under Notification No.11/2005-ST.

Analysis:

1. The appellants, engaged in providing information technology software services (ITSS) to customers outside India, filed a claim for rebate of CENVAT credit availed on input services under Notification No.11/2005-ST. A portion of the rebate claim was rejected, citing inadmissibility of CENVAT credit on services like hotel bills, air travel, employees' insurance, repair of vehicles, and hospitality services. The issue revolved around the eligibility of these services for CENVAT credit under the notification.

2. The Chartered Accountant representing the appellants argued that the Assistant Commissioner exceeded his powers by proposing to deny CENVAT credit on various services based on nexus grounds. It was contended that the Assistant Commissioner's show-cause notice, denying the credit, was improper as the total amount denied exceeded the monetary limit for adjudication by the Assistant Commissioner/Deputy Commissioner. The argument emphasized that denial of credit without proper verification of correctness of CENVAT credit, as required by the notification, was unjustified.

3. The Tribunal found merit in the appellant's submissions, noting that the proper procedure should have involved holding up the rebate claim, issuing a separate show-cause notice for denying CENVAT credit, and conducting distinct proceedings due to the amount exceeding the adjudication powers. It was observed that the services in question, such as hotel bills for employee training, air travel for business purposes, employees' insurance, and vehicle repairs, had a nexus to the output service, making them eligible for CENVAT credit.

4. Additionally, it was argued that the correctness of CENVAT credit availed was not a requirement under Notification No.11/2005-ST. The verification for sanctioning rebate claims under the notification should focus on whether the service was exported, consideration received, and tax payment status. The Tribunal agreed with this argument, concluding that the impugned order could not be sustained based on the verification requirements outlined in the notification. Consequently, the appeals filed by the appellants were allowed, granting them the benefit of the CENVAT credit with any consequential relief.

Conclusion:
The judgment centered on the eligibility of various input services for CENVAT credit under Notification No.11/2005-ST, highlighting the need for proper verification procedures and adherence to adjudication powers. The Tribunal ruled in favor of the appellants, emphasizing the nexus of the disputed services to the output service and the verification criteria specified in the notification for rebate claims.