2009 (5) TMI 50 - AT - Service Tax

Cenvat Credit Export of Business Auxiliary Service - Various Input Services used to provided output service - Department wants the rebate to be denied on merits on grounds like some services can not be considered as input services, some services are used only in maintenance and repair of capital assets, some of the services have no direct nexus with the out put services etc. The Department also wants the rebate to be denied for part of period on the ground that the required declaration has not been filed before export of the services held that non-observance of a procedural condition in this case is of a technical nature and cannot be used to deny the substantive concession. Further, in respect of export, a liberal view requires to be taken. The non-fulfilment of the procedure cannot lead to denial of the benefit under the beneficial legislation providing for export benefits.

Issues Involved:
1. Filing of declaration prior to export of services.
2. Eligibility of certain services as input services for rebate.
3. Procedural lapses and their impact on rebate claims.

Issue-wise Detailed Analysis:

1. Filing of Declaration Prior to Export of Services:

The Department argued that the filing of a declaration prior to the export of services, as mandated by Notification No. 12/2005-ST dated 19.4.2005, is a mandatory requirement. The respondent filed the declaration on 9.5.2005, which was after the export of services for the period in question. The Department contended that no rebate of service tax should be admissible for the period prior to 9.5.2005 due to this delay.

The respondent countered that the late filing of the declaration is a procedural lapse and should not be used to deny substantive concessions. They argued that such procedural lapses should be viewed liberally, especially in the context of export benefits. The Tribunal agreed with the respondent, citing that the non-observance of a procedural condition of a technical nature cannot be used to deny substantive concessions. The Tribunal emphasized that a liberal view is required in respect of export benefits and procedural lapses should not lead to denial of the benefit under beneficial legislation.

2. Eligibility of Certain Services as Input Services for Rebate:

The Department challenged the eligibility of certain services such as Mandap Keeper, Outdoor Catering, Real Estate Agent Services, and others, arguing that these services are not directly used in providing the output services and are related to the maintenance of capital assets or other peripheral activities. The Department also contended that the respondent did not declare which services were input services for the output services provided.

The respondent maintained that all input services for which rebate is claimed have been used for rendering export services. They cited various decisions, including CST, Delhi Vs. Keane Worldzen India Pvt. Ltd. and C.C.E., Hyderabad IV vs. Deloitte Tax Services India Pvt. Ltd., to support their claim that services such as Equipment hiring, professional consultation, recruitment, security, telephone, transport, training, facility operation, courier, cafeteria, and advertisement services should be considered as input services in relation to the output services.

The Tribunal agreed with the respondent, noting that the terms 'inputs' and 'input services' used in the Export Services Rules have the same meaning as in the Cenvat Credit Rules. The Tribunal observed that the eligibility to credit of duty paid on inputs and credit of tax paid on input services is not contingent on whether the services are exported or not. They emphasized that if the respondent were providing the same services to domestic customers, they would be entitled to use the credit to pay the service tax. Therefore, the eligibility for rebate should not be questioned without questioning the credit taken.

3. Procedural Lapses and Their Impact on Rebate Claims:

The Department argued that the procedural requirement of filing a declaration before the export of services was not met and thus rebate claims should be denied. The respondent argued that the late filing of the declaration is a procedural lapse and should not impact the substantive right to rebate.

The Tribunal held that the late filing of the declaration is a procedural lapse and should not be used to deny substantive concessions. They emphasized that the non-observance of a procedural condition of a technical nature cannot be used to deny the substantive concession. The Tribunal also noted that in respect of export benefits, a liberal view should be taken, and procedural lapses should not lead to the denial of benefits under beneficial legislation.

Conclusion:

The Tribunal rejected the Department's appeals, holding that the late filing of the declaration is a procedural lapse and should not be used to deny substantive concessions. They affirmed that all input services claimed by the respondent were used for rendering export services and thus eligible for rebate. The appeals by the Department were dismissed, and the respondent was entitled to the rebate claims.

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