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TMI Blog2018 (6) TMI 1813X X X X Extracts X X X X X X X X Extracts X X X X ..... credit as well as refund after considering the submissions made by the appellant. - HON BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) For the Appellant : Shri Ranjit Mathani, Advocate For the Respondent : Shri M.P. Damle, Assistant Commissioner (AR) ORDER The common issue involved in all these appeals is whether the input services on which cenvat credit was availed by the appellants has nexus with the out put services and consequently whether appellant is entitle for the refund of the Cevat credit availed on such service under Rule 5 of Cenvat Credit Rules, 2004. 2. Shri. Ranjit Mathani, Ld. Counsel for the appellant submits that all the services which were disputed by the lower authority were used in or in relation to provision of out put service, none of the service was used for personal use. Ld. Counsel submitted detailed chart showing the use of the services, their explanation on each and every service. He also relied upon various judgments wherein all the subject services were allowed as input service. He submits that lower authority also raised the issue that documentary evidences were not produced. He submits that all the documents were produced by which f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 1 to 3 of the compilation] 6. Circular of 934/4/2011 dated 29.04.2011 [ pg no. 4 to 6 of the compilation] 2 Business travel Expenses 4,20,730 1,38,197 45,165 6,04,092 1. Credit has been denied as : a. Nexus with output service not shown and b. Personal consumption is not ruled out 2. Commissioner has relied upon the judgment in case of Vikram Ispat (Tri) to disallow Credit 1. These services are used for travelling of employees between the two branches of the appellant when on official duty or for meetings, conferences or business purposes 2. Decision in case of Vikram Ispat (Tri) should not be relied as: (a) it is contrary to numerous Division Bench judgments like in Accenture (Tri) and WNS Global (Tri) of CESTAT, (b) appeal is pending in HC on this count and (c) case proceeded on the basis that no documents / details given by Appellant 1. Axis Bank LTD (Tri- Mumbai) [ pg no. 121 to 125 of the compilation] 2. WNS Global Services (Tri- Mumbai ) [ pg no. 33 to 36 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant period the registered address was infact at Kalina and Nitco Park Chennai, i.e. the addresses mentioned on the invoice. The Commissioner has not appreciated the facts in the present case and proceeded to deny CENVAT Credit without application of mind 3. Security service is specifically included in input service definition, and credit not to be denied on technicality 4. Circular of 2010 requires liberal approach in case of incomplete invoice Convergys India Pvt. Ltd. (Tri-Del) [ pg no. 15-16 of the compilation] 5 Hotel Stay charges/Hotel accommodation 9,35,027 1,36,300 43,938 11,15,265 1. Nexus with output service or how efficiency to provide output service is impacted in absence of service 2. After 01.04.2011, credit not available if services are used for personal consumption 1. The hotel bills will never indicate purpose of stay and impossible test cannot be required of the Appellant 2. Bills may be verified as also with debit to P L account 3. No personal consumption - stay is f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the address clearly mentioned the Appellant's address along with the Company's name and service has been received These services have been used by the Appellant for repair/maintenance of office including of furniture, hence, credit needs to be admissible on carpet/whiteboard/name plates, etc. 1. KLA Tencor Software India Pvt. Ltd.( Tri- Chennai) [pg no. 53-56 of the compilation] 2. Circular 120/01/2010 dated 19.01.10 [ pg no. 1 to 3 of the compilation 9 Life Insurance Services 3,468 - - 3,468 Credit has been denied stating that these services do not affect the efficiency of providing the output service and are for personal consumption (Group term insurance) 1. The expenses relate to Group term life insurance in lieu of EDLI under Provident Fund Act and statutorily required as per the Provident fund Act, 1952 (EDLI) 3. CENVAT Credit taken only pre-2011, when there was no restriction on services used for personal consumption Maruti Suzuki India Ltd.(Tri- Chan) [ pg no. 74 to 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umbai ) [ pg no.33 to 36 of the compilation] 3. Accenture Services Pvt. Ltd. (Tri- Mumbai) [ pg no.37 to 40 of the compilation] 4. Integra Software Services Pvt. Ltd. (Tri- Chennai) [ pg no. 41 to 48 of the compilation] 5. KLA Tencor Software India Pvt. Ltd. (Tri- Chennai) [ pg no. 53 to 56 of the compilation] 6. Essar Oil (HC- Gujarat) [ pg no. 62 to 63 of the compilation] 2 Hotel Stay Services 7,288 26,384 - 33,672 1. Nexus with output service or how efficiency to provide output service is impacted in absence of service 2. Official use not shown 1. The hotel bills will never indicate purpose of stay 2. Bills may be verified with debit to P L account 3. No personal consumption - stay is for business purposes of meeting, seminar, conference, workshop 4. Impossible test cannot be required of the Appellant 1. One Advertising Communication Services Ltd. (Tri- Ahmedabad ) [ pg no. 89 to 90 of the compilation] 2. Accenture Services Pvt. Ltd. (Tri- Mumbai) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (CAM charges) 4,02,416 1,53,520 4,54,999 10,10,935 Relied upon the judgment in case of Knoah Solutions (Tri) to disallow credit 1. CAM charges a part and parcel of rent agreement and cannot be isolated 2. Judgment cited in OiA viz Knoah Solutions (Tri) is not applicable in the present facts. In Knoah Solutions (Tri) the issue was sent for de novo verification and no finding was given on merits 3. Judgment in Knoah Solutions (Tri) is not applicable in this case, specifically in light of the judgment passed by the same Hon'ble member in the case of Marathon Electric (Tri 1. Marathon Electric India Pvt. Ltd. (Tri- Hyd) [ pg no.82 to 84 of the of the compilation 7 Service tax on reverse charge (lease line) - - 1,49,781 1,49,781 Rule 5B of CCR cited to disallowed credit - para 8.10.1 Incorrect provision of CCR applied to deny Credit. Facts of matter not considered, i.e. the Appellant's services are not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Security is specifically named in the definition of 'input service', hence, credit is admissible 2. Providing security to employees and office assets is an indispensable condition for any business Convergys India Pvt. Ltd. (Tri-Del) [pg no. 15 to 16 of the compilation] 11 De bonding of capital goods - - 803 803 Credit disallowed stating there is not nexus with the output service 1. These services are of CHA and were used for de-bonding of office assets. The exit of STPI status was for commercial purposes. (Semco Electrical - Tri) 1. WNS Global Services (Tri- Mumbai) [ pg no.33 to 36 of the compilation] 2. Sundaram Clayton Ltd. (Tri- Chennai) [pg no. 70 to 73 of the compilation 12 Facilitator/Agent service charge - - 35,518 35,518 Credit disallowed stating there is not nexus with the output service These services are of security charges and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 305 305 Credit disallowed as invoice copies not submitted 1. These pertain to old invoices, which will be retrieved and submitted, if required Total 4,61,800 2,22,028 7,36,100 14,19,928 Sl.No HEADS OF THE SERVICES ST/85547/2018 ST/85546/2018 ST/85549/2018 ST/85568/2018 ST/85567/2018 Total Issue Submission Submission Case laws referred January 2014 to March 2014 for the OIO NO. 229- R/VM/15-16, dated 08.07.2015 April 2014 to September 2014 for the OIO NO. 401 402- R/DB/15-16, dated 27.08.2015 October 2014 to March 2015 for OIO NO. 582 583-R/DB/15-16/, dated 09.12.2015 April 2015 to June 2015 for the OIO NO. 761-R/DB/1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Online Information Database Access and Retrieval services (OIDAR services) - - - 16,179 - 16,179 Credit disallowed for: 1. Documentary evidence to show that services used for recruitment of employees 1. Services procured from naukri.com for hiring people 2. Human resources most important facet for services industry 1. WNS Global Services (Tri- Mumbai ) [ pg no.33 to 36 of the compilation] 2. Knoah Solutions Pvt. Ltd. (Tri- Hyd) [ pg no. 85 to 88 of the compilation] 3. Convergys India Pvt. Ltd. (Tri- Delhi) [ pg no. 15 to 16 of the compilation] 4 Office document storage services and printing and photo-copying services - 3,532 - 213 - 3,745 Credit disallowed for: 1. Documentary evidence to show that services were used in relation to official records; 2. Nexus 3. impact on efficiency of output service 1. Storing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re services are not covered under Section 68(2) of Finance Act 8 General insurance service - 11,721 17,521 - - 29,242 Credit disallowed in absence as documentary evidence not produced to show that services not in nature of health/life insurance 1. Wrong provision applied to deny Credit 2. Credit is for assets and property, and not for people 1. Accenture Services Pvt. Ltd. (Tri- Mumbai) [ pg no. 37 to 40 of the compilation] 2. Sundaram Clayton Ltd. vs. Commissioner (Tri- Chennai) [pg no. 70 to 73 of the compilation 9 Facilitator/ Agent service charges (Security) - - 22,510 - - 22,510 Nexus not exhibited inasmuch as invoices not establishing nature of service These services are of security charges and falls squarely in the inclusive part of the definition of 'input service'. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,221 Documents not submitted Verification of documents to be undertaken 13 Various other services (para 8.18 of OIA - 10,576 46,190 80,419 33,209 1,70,394 Nexus with the output service not established Various day to day services necessary for efficient commercial activity, and pertains to services like cleaning/pest control/printing, etc. 14 Disallowed on account of different name (telecommuni cation services) - 27,013 5,770 - 35,400 68,183 Credit denied due to: 1. Invoice not being in the name of appellant but employee with c/o address of appellant. 2. Certain personal consumption noticed. The credit was availed on a summary basis, and the invoice clearly displays name of the Appellant, hence, credit cannot be sought to be denied ..... X X X X Extracts X X X X X X X X Extracts X X X X
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