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TMI Blog2017 (1) TMI 1448X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by them - appeal allowed by way of remand. - ST/53165-53166/2014-CU[DB] - ST/A/70908-70909/2017-CU[DB] - Dated:- 17-1-2017 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri Nishant Mishra, Advocate for Appellant Shri Pawan Kumar Singh, Supdt (AR). for Respondent ORDER Per: Anil Choudhary The issue in this appeal relates to allowance of rebate claim under Notification No.12/2005-ST from April to September, 2010 in Appeal No.ST/53165/2014 and January, 2010 to March, 2010 in Appeal No.ST/53166/2014. Both the impugned orders have been passed by the same Commissioner (Appeals), and are even dated and also are apparently Parimateria hence both the appeals are taken up together for disposal. 2. The dispute as per the show cause notice is that the appellant was registered with the Service Tax Department for providing output services namely Online Information and Data services , as defined in Section 65(zzzb) of the Finance Act, 1994 and have been availing various input services. The appellants filed rebate claim for an amount ₹ 37,85,284/- on 24/03/2010 for the period April 2010 to September 2010 for reba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices are detailed in Annexure-1 to the SCN, did not appear to be eligible input service required for export of output service which involve service tax amounting to ₹ 34,612/-. According, appellant were required to show cause as to why the rebate claim amounting to ₹ 37,85,284/- should not be rejected being not in with the provisions of Notification No.12/2005-ST. Similarly is worded SCN dated 27/01/2012 for the period January 2010 to March 2010 where a claim was preferred for ₹ 6,81,350/- on 20/05/2011 followed by revised claim sheet filed on 23 rd September, 2011 for an amount of ₹ 6,35,000/-. It appeared to revenue that an excess claim for ₹ 2,01,235/- have been preferred and accordingly it further appeared in the course of verification of the invoices that the appellant have claimed the rebate of service tax paid on input services amounting to ₹ 01,31,555/- as per Annexure-2 for which the payments made on various dates which is prior to filing the intimation in the division office and thus the rebate claim of ₹ 1,31,555/- appeared to be not admissible to the appellant. Further, few invoices for input service appear to be not eligible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit in the column of opening balance and also shown figures of Cenvat credit taken in the month of October, 2010. They have also shown credit utilisation in the same month. In the returns for the period April, 2010 to September, 2011 the appellant as shown figures of Cenvat credit taken as ₹ 36,64,660+ ₹ 01,09,996/- (Cess) in the month of April 2010 and also shown an amount of ₹ 14,14,845+ ₹ 36,303/- as utilised in the month of April 2010 towards payment of service tax involved on output services provided by them in the DTA. The availment of big amount of Cenvat credit indicates that they have taken combine credit of service tax of input services during the month of January, 2010 to March 2010. He further observed that the argument made by the appellant in the reply to SCN, regarding non availment of Cenvat credit was found contradictory to evidence on record and violation of condition No. (2e) of the Notification. The Learned Commissioner (Appeals) further found that the appellant in the statements of facts have clearly admitted that under column 5B of ST-3 return they are showing the total of service tax in respect of input service mentioned in invoices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground urged by learned counsel is that showing of the amount of rebate claim as Cenvat credit in the return is a clerical mistake. For a small clerical mistake made in the return and there being no contrary finding, the rejection of the claim on this ground is bad. The Counsel also counsel also relies on a precedent order by Single Member Bench of this tribunal in their own case being Final Order dated 21/12/2012 reported at 2013 (31) STR 360 (Tri.-Del) herein also for a similar claim under the same notification the appellant had claimed rebate for the period October, 2010 to December, 2010 which was rejected by the Assistant Commissioner on the ground that the appellant have not satisfied the conditions regarding non availment of Cenvat credit in respect of input or input services as appeared from the ST-3 returns for the said period October,2010 to March,2011 which revealed that the appellant availed the input service credit and also interest on the same. In course of proceeding before the Assistant Commissioner the appellant admitted that they have not availed input or input service credit and that the figures regarding the availment and utilisation of Cenvat credit in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 CCR, 2004. The availment of Cenvat credit in respect of inputs and input services is a matter of fact which is to be verified from the records maintained by the appellant. From the very beginning it have been very pleaded that it is only a matter of clerical mistake in the returns. Accordingly, this Tribunal held that the claim was sustainable and the appeal was allowed by way of remand to the original authority for deciding the rebate claim filed by the appellants afresh with a direction that if the appellants maintain the records and from such records it is clear that they have not availed any Cenvat credit, the rebate claim would have to be accepted. Further, directed that the authority while examining rebate claim shall also take into account the Chartered Accountant's certificate, the validity of which is considered in the light of the decision in the case of R.B, Agarwal and Company versus CCE. The learned counsel also states that they have substantially complied with all the conditions of the said notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emicals and Fertilisers (supra) was held to be clearly applicable. The learned counsel also urged that under the undisputed fact that 100% of the services have been exported during the relevant period, there is no question of any input service not having been used in the course of providing output services which have admittedly been exported. Learned Counsel also relied on the Division Bench Ruling of this Tribunal in the case of Prudential Process Mgmt. Services (I) Pvt. Ltd. Vs C.S.T. Mumbai reported at 2016 (42) S.T.R. 764 (Tri. Mumbai) wherein also under similar facts of 100% services exported and the issue being of refund claim of unutilized Cenvat credit under Rule 5 of CCR 2004. This Tribunal observed that the allegation of revenue that some services have not nexus with the output service, under the fact that the appellant is engaged in export of 100% services and no part of services is provided in India, with this reason alone all services which had been received and used by the appellant are deemed to have been used for providing output services which have been exported, since there is no provision for domestic services. The ratio of services that how much is related ..... X X X X Extracts X X X X X X X X Extracts X X X X
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