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TMI Blog2013 (12) TMI 1375X X X X Extracts X X X X X X X X Extracts X X X X ..... ate claims for rebate of service tax paid on input services and excise duty paid on duty paid inputs which were used in the development of software, which was exported out of India. The rebate claims are filed in terms of the provisions of Rule 5 of the Export of Service Rules read with Notification No. 12/2005-S.T., dated 19-4-2005. One of the conditions for grant of rebate under this notification is that no Cenvat credit should have been availed in respect of which rebate claim has been filed. The rebate claim for an amount of Rs. 3,52,360/- filed by the appellant for the period from October, 2010 to December, 2010 was rejected by the jurisdictional Asstt. Commissioner vide order-in-original dated 31-1-2012 on the ground that the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 2. Shri J.K. Mittal, ld. Chartered Accountant for the appellant, pleaded that the dispute in this case is only for the period from October, 2010 to December, 2010, that the appellant are a 100% EOU located in Software Technology park and are engaged in the export of services, i.e. development of software for their clients abroad, that they are neither availing Cenvat credit nor utilizing the same as their domestic transactions are rare and if they avail the Cenvat credit, they cannot utilize the same, that period prior to October, 2010, rebate claims were regularly sanctioned by the jurisdictional Asstt. Commissioner treating their inputs or input services as having been used in the development of software for export and during per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utilization is a matter of record, which could have been verified by the department and just on the basis of ST-3 Returns, in which the rebate claim received by them was by mistake mentioned as utilization of Cenvat credit, the department could not conclude that the appellant have availed and utilized the Cenvat credit, that in view of this, the impugned order upholding the denial of rebate is totally wrong, that as regards findings in para 4.4. of the Commissioner (Appeals)'s order that in this case, the input services are not eligible for rebate, as the same have not been used for providing the services for export, the input services, in question, are internet/telecommunication services, housekeeping services, professional services, outd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of software exported out of India would be available in terms of the Notification No. 12/2005-S.T. only if no Cenvat credit in respect of those input/input services had been availed. Out of the two objections of the department in respect of the rebate, in question, the first objection is that the input services in respect of which the rebate has been claimed are not input/input services utilized for providing the services for export. The input services in respect of which rebate has been claimed are internet/telecommunication services, housekeeping services, professional services, outdoor catering services, renting of immovable property services, maintenance & repair services, security agencies services, rent-a-cab operator services, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Cenvat credit under Rule 5 of Cenvat Credit Rules, 2004. It would not be correct for the department to conclude that they have availed Cenvat credit just on the basis of Col. 5b of the ST-3 Return without checking the records, which are required to be maintained by the appellant for availment of Cenvat credit in respect of the provisions of Rule 9(6) of the Cenvat Credit Rules, 2004. The availment of Cenvat credit in respect of input or input services is a matter of fact which has to be verified from the records maintained by the appellant and no inferences can be drawn in this regard merely from the ST-3 Returns, when the appellant, from the very beginning are pleading that the entry in Col. 5b regarding availment and utilization of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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