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TMI Blog2022 (8) TMI 1105X X X X Extracts X X X X X X X X Extracts X X X X ..... . After due process of law, the Original Authority sanctioned the refund partially and rejected some amounts, on various grounds. Being aggrieved by the partial rejection of the refund claims, the appellant filed appeals before the Commissioner of Service Tax (Appeals-I), who vide orders impugned herein rejected the appeals filed by the appellant. Hence, the appellant is now before the Tribunal. 3.1.1 On behalf of the appellant, Shri K. Sivarajan, Learned Chartered Accountant, appeared and argued the matter. He furnished a table showing the periods and amounts involved, which is reproduced below:- Sl. No. Period involved Appeal No. Amount (in Rs.) 1. October 2008 ST/41135/2015 3,60,274/- 2. November 2008 ST/41137/2015 2,80,536/- 3. December 2008 ST/41131/2015 6,11,511/- 4. January 2009 to March 2009 ST/41130/2015 9,70,191/- 5. January 2010 to March 2010 ST/41138/2015 14,36,854/- 6. April 2010 to June 2010 ST/41136/2015 30,99,021/- 7. July 2010 to September 2010 ST/41134/2015 91,16,317/- 8. October 2010 to December 2010 ST/41140/2015 11,89,790/- 9. January 2011 to March 2011 ST/41133/2015 9,21,726/- 10. Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount has not been recovered from the employees. He submitted that the issue as to whether Outdoor Catering Service is eligible for credit or not prior to 01.04.2011 has been laid to rest by various decisions of the Tribunal as well as High Courts. He relied upon the decision in the case of Commissioner of Central Excise v. M/s. HCL Technologies Ltd. [2014 (11) TMI 663 - Allahabad High Court] and M/s. R.R. Donnelley India Outsource Pvt. Ltd. v. Commissioner [2019 (1) TMI 1244 - CESTAT, Chennai]. Learned Consultant added that after 01.04.2011, the appellant has not availed any credit on these services. (b) Customs House Agent: These services were availed by the appellant for clearance of computers, laptops, etc., which were imported into India. The goods were used by the appellant for providing output services and the services of the Customs House Agent was necessary for filing Bill-of-Entry and paying necessary Customs duties/charges. He relied upon the decision in the case of M/s. Scope International Pvt. Ltd. v. Commissioner of Central Excise [2018 (7) TMI 1007 - CESAT, Chennai] to argue that such services are eligible for credit. (c) Insurance Service: The appellant had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant has not made any recovery towards the service charges relating to this service. That such passes are eligible for credit prior to 01.04.2011. He relied upon the decision in the case of M/s. Ford Motor Pvt. Ltd. v. Commissioner [2018-TIOL-2912-CESTAT-MAD]. He added that after 01.04.2011, the appellant had not availed any credit on Sodexo Passes. (i) Pre-employment Health Checkup: It is explained by the Learned Consultant for the appellant that these services relate to the health checkup of the employees done during the recruitment process. That after issuing the offer letter, the employees have to undergo health checkup, which is done by the appellant-company. Since such services are availed in relation to recruitment of the employees, they would fall within the definition of input service. It is submitted by him that credit on such services have been availed after 01.04.2011 also. (j) Event Management Service: These services were availed in relation to conducting events related to the employees and are eligible for credit. (k) Travel Agent Service: These services were availed towards employees' travel for business related activities and were availed even after 01. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gent services, which were received from M/s. Anvase Exim Pvt. Ltd. (t) Printing of spot awards: Credit in regard to these services was availed prior to 01.04.2011 and such services were used for felicitation of employees who contribute to work exceptionally. That these services are in the nature of activities relating to business and are eligible for credit as these were availed prior to 01.04.2011 only. (u) Annual Maintenance Contract (AMC): These services were availed towards Annual Maintenance Contracts for fire alarms and security control equipment. Learned Consultant for the appellant submitted that these services are essential for providing output services and are eligible for credit. (v) Business Support Services: The appellant had availed these services for day-to-day updates on forex market from M/s. Green Back Forex Services Pvt. Ltd. and also towards necessary printing of stationery / awards for employees. Learned Consultant added that these services were availed after 01.04.2011 as well. (w) Information Technology and Software Service: Such services were availed from M/s. Dell India Pvt. Ltd. for providing output services. (x) Management Maintenance or Repair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half-yearly Service Tax returns for the relevant period, the appellant is required to disclose the gross amount for which bills / invoices / challans are issued relating to service provided / to be provided (including export of service and exempted service) and the gross amount received in money against services provided. That there is no requirement to disclose accruals / unbilled revenue in the Service Tax return. If the Original Authority had included the unbilled revenue in the total turnover, he should also have included the same in the export turnover as well. That for this reason, the computation of total turnover is not proper. 3.6 Wrong formula applied for computation of eligible refund: The Learned Consultant for the appellant added that the authorities below have erred in computing the refund formula as they have computed on the basis of the net credit for the period and not on the total credit availed by the appellant for the disputed period. That the authorities below have referred to the formula as per the refund Notification to be 'total CENVAT Credit taken on input services during the given period', but however, have applied the net credit for computation of the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Authority vide Order-in-Original No. 06/2013 dated 31.01.2013 confirmed the demand of Rs.1,04,56,207/- along with interest and also imposed penalty of Rs.5,00,000/- (Rupees Five Lakhs only) under Rule 15(1) of the CENVAT Credit Rules, 2004. During the pendency of the appeal against such order, the appellant opted for the benefit of the Sabka Vishwas Scheme and paid 50% of the dues as confirmed in the above order. He submitted that the refund claim pertaining to the above appeals for the period from April 2010 to March 2011 is Rs.1,43,26,854/- [Rs.30,99,021/- + Rs. 91,16,317/- + Rs. 11,89,790/- + Rs. 9,21,726/-]. The amount confirmed pursuant to the Show cause Notice alleging wrong availment of credit is Rs.1,04,56,207/-. 3.12.2 He adverted to the "Sabka Viswas (Legacy Dispute Resolution) Scheme, 2019 - FAQs" issued by the Central Board of Indirect Taxes & Customs, stating that question numbers 42 and 43 would show that even if a declaration under the Scheme is filed, it cannot be assumed that the person has admitted to the position and agreed with the allegations in the Show Cause Notice. In continuation of this argument, he relied upon the decision in the case of M/s. Bosch Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 011 and has been rightly rejected by the authorities below. 4.3 It is submitted by the Learned Authorized Representative for the respondent that the credit denied for the reason that the appellant has not produced invoices to the tune of Rs.13,147/- is legal and proper. 4.4 So also, that the rejection of an amount of Rs.50,730/- on the ground that the invoices do not show that Service Tax has been charged by the service provider is correct and the rejection on this ground has to be upheld. 4.5 With regard to the arguments put forward by the Learned Consultant for the appellant that they are eligible for the refund pertaining to the period from April 2010 to March 2011, where the appellant has settled the dues by opting for the Sabka Vishwas Scheme, she submitted that when the appellant has opted for the benefit of the Sabka Vishwas Scheme, the same amount cannot be claimed as refund in parallel refund proceedings. 4.6 She prayed that the appeals may be dismissed. 5. Heard both sides. 6. It is an undisputed fact that the appellant is a 100% Export Oriented Unit and is under the Software Technology Park (STP) Scheme. The refund claims have been filed by the appellant under Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se services are not eligible for credit since such services are availed prior to the recruitment of an employee. From the details given by the Learned Consultant for the appellant, we find that such services are availed even before the employee is recruited by the appellant-company. For this reason, accepting the arguments put forward by the Learned Authorized Representative for the Department, we are of the view that credit on these services is not eligible after 01.04.2011. 7.2.3 So also, with regard to Travel Agent Service, it is submitted by the Learned Consultant for appellant that such services are availed for business travel and related activities. After 01.04.2011, there are certain restrictions with regard to leave and home travel concessions. The appellant is required to furnish details in respect of the purpose and places of travel along with evidence regarding the order given by the appellant-company to undertake the travel, etc. As the appellant has failed to produce such evidence, we cannot conclude that the Travel Agent Services were availed for providing output services. We are of the view that such services are not eligible for credit after 01.04.2011. 7.2.4 The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsideration while applying the formula for computing refund is settled by various decisions as in the case of M/s. Global Markets Centre Pvt. Ltd. (supra) and M/s. Morgan Stanley Investment Management Pvt. Ltd. (supra) and this issue has to be re-looked by the Adjudicating Authority. 11. Another ground with regard to computation of eligible refund is that the export turnover has been restricted by the authorities below to the documents proving the realisation of export proceeds. In this regard, we have to say that the refund is eligible only in respect of the Foreign Inward Remittance Certificates (FIRCs) (realization of export proceeds) produced by the appellant. However, taking note of the argument put forward by the appellant with regard to wrong computation of eligible refund, we are of the view that the matter has to be once again verified and considered by the Adjudicating Authority. 12. Refund has also been rejected on the ground that Service Tax Registration has not been mentioned in the invoice and that the appellant has not produced any Chartered Accountant certificate to this effect. In this regard, we are of the opinion that if the appellant is able to furnish suffici ..... X X X X Extracts X X X X X X X X Extracts X X X X
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