9911796707
TMI Blog2013 (12) TMI 1375X X X X Extracts X X X X X X X X Extracts X X X X ..... tally incorrect to deny rebate on the ground that the same are not the services required for development of software more so, when during the period prior to the period of dispute and they paid after the period of dispute, the department has been granting rebate in respect of these very services. Appellant are a 100% EOU i.e. a STP unit and their domestic transactions are rare, there would not be no occasion for them to utilize the Cenvat credit if any availed when it is not the case of the Department that they have also claimed cash refund of accumulated 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evelopment of software, they require a number of duty paid inputs and input services. The appellant from time to time filed rebate 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, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the taxable service exported by the appellant. Against this order of the Commissioner (Appeals), this appeal has been filed. 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. Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jected unless there is contradictory certificate from another Chartered Accountant, that availment of Cenvat credit and its 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ology unit engaged in export of the services and that the rebate of duty paid inputs/input services used in development 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 immo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if any availed when it is not the case of the Department that they have also claimed cash refund of accumulated 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 appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
