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TMI Blog2015 (9) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... issue involved in all the three Orders-in-Appeal is common to a large extent and, therefore, the matter is being taken up together in respect of all three orders. Where there is a variation in issue involved, that will be addressed by us separately in this order. 2. The facts of the case are that the appellant are having centralized registration with the service tax department under the category "Management Consultant, Business Auxiliary Service, Maintenance or Repair Service, Architects Service, Erection, Commissioning and Installation Service, Test, Inspection and Certification Service, Online Information and Data Service, Business Support Service, Sponsorship Service, Commercial Training & Coaching Service, Advertising Agency Service, Consulting Engineering Service, Manpower Recruitment Agency Service, Renting of Immovable Property Service, Transport of Goods by Road Service, Market Research Agency Service, Credit Card and Related Service, Information Technology Service. They filed refund claims for rebate of service tax paid on taxable services which are exported in terms of Rule 3 of Export of Services Rules, 2005, for the period October, 2008 to December, 2008 in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . does not establish that the services have been specified in the invoices. The invoices submitted do not show the description of the services exported and the element of service tax, which are mandatory under Rule 4 of the Service Tax Rules, 1994. Therefore export of services is not established. (iv) The details of the services exported are required to be declared in the SOFTEX Form also, but the SOFTEX forms are not showing such declaration. Therefore, the claim of export of services is not acceptable. (v) TCS America has been awarded contracts by clients viz. Worldspan L.P., Olive Software, Honeywell Inc. and IT Corporation, and further sub contracted the same to TCS India. But this fact is not shown in their (TCS America) Master Service Agreement with clients. (vi) With reference to CBEC Circular No. 868/6/2005-CX, dated 9-5-2008, they are liable to establish with documentary evidence that they exported the services and paid service tax but they failed to do so. (vii) The appellant has not established with documentary evidence that the Cenvat credit utilized for payment of service tax on the expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volumes of paper books to establish that the rebate claims were made on the basis of documents evidencing the nature of service exported and co-relating the same with the classification of service under the Finance Act, 1994, the invoices under which the services were exported, the Softex form relating to each invoice, the certification of the Softex forms by STPI authorities in every case, FIRC certificates co-relating the foreign inward remittance with each invoice, and lastly the sales registers showing the invoices under which the services were exported, the category of the service, the payment of service tax through the Cenvat account. The ld. Counsel further stated that the appellants were held ineligible for rebate basically for the following reasons : (a) The SOFTEX Forms do not reflect the details of service exported. (b) The forms are not certified by STPI Authorities. (c) In "many cases, incorrect certificates are attached to the SOFTEX Forms. (d) There is no specific description of the services in any of the documents. (e) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p;The ld. AR appearing for Revenue reiterated the findings of the Commissioner (Appeals). He argued very strongly that since rebate is to be sanctioned for duty paid on taxable services exported, the applicability of Rule 4A become significant as it requires that all taxable services are to be provided under an invoice containing the following : (i) Name, address and registration number of such person; (ii) Name and address of the person receiving, taxable service; (iii) Description and value of taxable service provided or agreed to be provided; (iv) The service tax payable thereon. He argued that unless invoices contained these details, it would not be possible to verify the export of services with the foreign remittance receipt. He also contended that it is absolutely essential to give description of the taxable service, in the documents, further that the description given on the invoices under which the export of services took place is not easily understood because the description does not match with any of the categories of services given in Section 65(105) of the Finance Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s exported, the Central Government may, by notification, grant rebate of service tax paid on such taxable service or service tax or duty paid on input services or inputs, as the case may be, used in providing such taxable service and the rebate shall be subject to such conditions or limitations, if any, and fulfillment of such procedure, as may be specified in the notification". Notification No. 11/2005-S.T. issued under Rule 5, grants rebate subject to the conditions, limitations and procedures as stated below : 2. Conditions and limitations :- (a) that the taxable service has been exported in terms of rule 3 of the said rules and payment for export of such taxable service has been received in India in convertible foreign exchange; (b) that the service tax and cess, rebate of which has been claimed, have been paid on the taxable service exported; (c) the amount of rebate of service tax and cess admissible is not less than five hundred rupees; and (d) that in case, - (i) the service tax and cess, rebate of which has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication by the Assistant Commissioner under refund Order No. BR/386/2009, dated 20-11-2009. The ld. Counsel has taken us through a series of documents in respect of these very invoices which indicate that the description in the invoices is such as would be covered under the category of Business Support Service or Information Technology Service or Maintenance and Repair Service. These documents have been submitted to the adjudicating authority also. But he apparently did not as much as even care to understand or go through the voluminous documents. We have also seen the co-relation between invoice number and the FIRC certificates as is evident from the Table below at para 6.3. Once, having declared to the department the specific classification under Section 65(105) of each of the services provided as mentioned in the invoices, we fail to understand how the adjudicating authority has come to the conclusion that the description of services is not given in the invoices. Once a particular description is explained by the appellant to be covered under a specific service classified under Section 65(105), the onus is on the department to prove that it is not covered by that service under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the element of service tax which is mandatorily required to be mentioned under Rule 4 of the Service Tax Rules is not shown in the export invoices. The appellant's contention is that they do not show the element of service tax in the invoices; however they have shown their records evidencing payment of service tax in respect of each invoice. Therefore, we are of the view that omitting to mention amount of service tax on the invoices when there is documentary evidence showing payment of service tax in the books of accounts maintained by the appellant, cannot debar them from the claim of rebate under Notification No. 11/2005. We do appreciate the ld. AR's contention that all taxable services to be provided must be accompanied by an invoice showing the particulars required under Rule 4A. But this omission, in the face of documentary evidence shown to us, is no reason to deny the substantial benefit of the notification. Revenue authorities should have co-related the huge volume of documents submitted by the appellant, no matter how voluminous, before arriving at a judicious decision. In view of the documents placed on record and. their co-relation, we hold that the rebate is admis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese services are related to the business of the service provider and are clearly admissible as input services under the definition of Input Services in Rule 2(1) of the Cenvat Credit Rules. There is a catena of judgment holding admissibility of credit on these input services such as Commissioner of C. Ex., Nagpur v. Ultratech Cement Ltd. - 2010 (20) S.T.R. 577 (Bom.) = 2010 (260) E.L.T. 369 (Bom.). We reject this contention. The other argument raised by the ld. AR relates to services exported from the SEZ units of the appellant in Chennai. There are two parts to this objection; the first is whether Cenvat credit would be available to these units in respect of input services received by them. We find no provision in law which debars this. The second part of the argument is the taxability of service exported from the SEZ units. Here also there is nothing in the statute which says that the tax should not be paid on taxable service exported from the SEZ units. We reject this contention also. 9. We are constrained to point out that the authorities have been casual in dealing with this refund claim, both in terms of factual verification as well as in terms of the legality of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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