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TMI Blog2016 (6) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... f the fact that period of dispute is prior to 1.4.2011 and also in view of the fact that the phrase activities relating to business would cover all the activities for which credit has been denied and in view of various rulings of the High Court and the Tribunal on the eligibility of service. Period of limitation - Eligibility of refund claim - time-barred for a portion of the claim for refund - Held that:- the matter is remanded to the first appellate authority to re-examine the aspect in view of the amendment brought in by Notification No.14/2016-CE (NT) dt. 1.3.2016 and other evidences to be gone into by the first appellate authority. - Appeal disposed of - Appeal Nos. ST/40887 to 40892/2015 - FINAL ORDER No.40917-40922/2016 - Dated:- 9-6-2016 - SHRI P.K. CHOUDHARY, JUDICIAL MEMBER For the Appellant : Ms. Thenmozhi Sivakumar, Advocate For the Respondent : Shri R. Chandrasekaran, AC (AR) ORDER All the six appeals are arising out of a common order and hence they are taken up together for disposal. 2. M/s. KLA Tencor Software India Private Ltd., the appellant herein, are providing software and application engineering and support service to M/s.KLA Tenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal was filed and found no favour with the Commissioner (Appeals). Hence the present appeals have been filed. 3. Heard both sides in the matter. 4. Appellant was represented by Ms. Thenmozhi Sivakumar, Advocate who submitted that there are three issues involved in these appeals as under :- (a) Eligibility of unutilized credit availed prior to obtaining registration with Service Tax department (b) Nexus between the input service availed by appellant vis-a-vis the output service rendered by appellant and eligibility of CENVAT credit. (c) Refund has been partially hit by limitation of time. 4.1 On the first issue, she reiterated the grounds of appeal at para 5.1 and submits that under Section 69 of the Finance Act, 1994 read with Rule 4 of Service Tax Rules, 1994, registration under Service Tax legislation is required only for service providers who are liable to pay service tax. However, the Appellant is predominantly engaged in provision of export of service and the said activity was not liable to service tax and therefore, they were not required to mandatorily register themselves for payment of tax. Appellant is entitled to avail credit even prior to obt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced on Tribunals ruling in Varica Herbs Vs CCE Pudcherry - 2015-TIOL-681 CESTAT-MAD. (d) CHA/Cargo Handling Service : Appellant imports computer accessories and other capital equipments for rendering their output service. They are required to be loaded/unloaded, transported from port of import to the premises for usage in business activities which are indirectly relatable to their business. Reliance was placed on the Tribunals Chennai Bench decision in Fourrts (I) Laboratories Pvt. Ltd. (e) Rent-a-cab : Appellant availED Rent-a-cab services for picking up and dropping off its employees from office premises to their residence. Employees are primary assets of the business and they have to ensure safety and security of their personnel thereby ensuring employees productivity. She relied on Boards Circular No.120/01/2010-ST, F.No.354/268/2009-TRU dt. 19.1.2010 wherein it has been clarified that services like Rent-a-cab, Outdoor catering, Manpower recruitment agency etc. are allowable services as they are relatable to output services. He relied on Tribunals decision in CCE Nazik Vs Cable Corporation of India Ltd. - 2008 (120 STR 598. (f) Other services Profession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 5 of the CCR ? (ii) Whether or not the input service credit availed on service tax paid is in relation to output service and eligible for refund ? and (iii) Whether or not the Appellant is eligible for refund which was partially hit by the limitation of time for the period from 01.04.2009 to 03.06.2009 which was not considered for sanctioning of Refund? 7. With regard to issue (i), the contention of the appellant is that under Section 69 of the Finance Act, 1994 read with Rule 4 of Service Tax Rules, 1994 registration under service tax legislation is required only for service providers who are liable to pay service tax and the appellant herein is predominantly engaged in the provision of export of service and therefore they are not liable to pay service tax and consequently not required to register with the department. The appellant has placed reliance on the judgement of Karnataka High Court in the case of mPortal India Wireless Solutions Pvt. Ltd. Vs ST - 2012 (27) STR 134. The Hon ble High Court at para-7 of its order has held as follows :- 7. Insofar as requirement of registration with the department as a condition precedent for claiming Cenvat credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their activity and how they are used by them in the provision of their service at para 5.2 of their grounds. 9. I also find from the impugned order at para-10 that Ld.Commissioner (Appeals) has placed reliance relating to issue No.(ii) on the judgement of the Supreme Court in the case of Maruti Suzuki Ltd. Vs CCE Delhi, Sundram Brake Linings Others Vs CCE and Vandana Global Ltd. Vs CCE. The decision in the case of Maruti Suzuki Ltd. is no longer good law in view of Hon ble Supreme Court s decision in the case of Ramala Sahkari Chini Mills Ltd. Vs CCE Meerut-I - 2016-TIOL-20-SC-CX-LB. The Tribunal s ruling in Sundaram Brake Linings Others Vs CCE stands overruled by the Honble Madras High Court in their own case reported in 2016 (41) STR 168 (Mad.) The ratio laid down by Tribunal s LB in the case of Vandana Global would have no application to the facts of the present case as that was a case dealing with eligibility of cenvat credit on supporting structures. 10. With regard to third issue, the learned Commissioner (Appeals) has denied the claim for refund as time-barred for a portion of the claim for refund. I find that with regard to rejection of claim for refund of unuti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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