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TMI Blog2023 (5) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... missible if not held admissible in proper proceedings initiated under Rule 14 of the CENVAT Credit Rules, 2004. In the case of M/S BNP PARIBAS INDIA SOLUTION PVT LTD VERSUS COMMISSIONER OF CGST, MUMBAI EAST [ 2021 (12) TMI 676 - CESTAT MUMBAI] it was held that The rule only provides that the admissible refund will be proportional to the ratio of export turnover of goods and services to the total turnover, during the period under consideration and the net Cenvat credit taken during that period. Indisputably, in the refund proceedings under Rule 5 ibid as amended, any such attempt to deny or to vary the credit availed during the period under consideration is not permissible. If the quantum of the Cenvat credit is to be varied or to be denied on the ground that certain services do not qualify as input services or on the ground of no nexus , then the same could have been done only by taking recourse to Rule 14 ibid. The impugned order denying the refund claims made in terms of Rule 5, for the reason that input services had no nexus with the output services exported or for the reason that the credit cannot be held admissible for the reasons of deficiencies in the documents ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) I sanction refund claim totally amounting to Rs. 1594907/- (Rupees Fifteen lakhs Eighty Nine thousand two hundred and seven only) to M/s. Hapag Lloyd Global Services Pvt. Ltd as per provisions of Rule 5 of CENVAT Credit Rules,2004 read with Notification No. 27/2012-CE (NT) dated 18.06.2012. ii) I reject refund claim totally amounting to its. 874340/- (Rupees Eighty lakh Seventy Four thousand Three hundred and forty only) to M/s. Hapag Lloyd Global Services Pvt. Ltd for the above period. Order-in-Original No. R/149/PK/2018-19 dated 28.03.2019 (in appeal ST/85081/2020) ORDER 1) I sanction refund claim totally mounting to Rs. 1758709/- (Rupees Seventeen lakhs Fifty Eight thousand Seven hundred and Nine only) to M/s. Hapag Lloyd Global Services Pvt. Ltd as per provisions of Rule 5 of CENVAT Credit Rules, 2004 read with Notification No. 27/2012- (NT) dated 18.06.2012. ST/85076,85080,85081,85082/4 2020 ii) I reject refund claim totally amounting to Rs. 673706/- (Rupees Six Seventy Three thousand Seven hundred and six only) to M/s. Hapag Lloyd Global Services Pvt. Ltd for the above period. Order-in-Original No. R/152/PK/2018-19 dated 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant, learned counsel submits that:- The issue in respect of non-admissibility of Cenvat credit in their own case for the same period has been considered by the Tribunal and the Tribunal by its order has allowed the credit in respect of these services. Tribunal has allowed credit in respect of business travel services, security services, hotel stay charges/hotel accommodation/food related services. Hence these should be allowed. Further the Tribunal has constantly been taking the view that for the disallowance of the Cenvat credit, appropriate proceedings should have been initiated in terms of Rule 14 of Cenvat Credit Rules, 2004 and refund claim filed under Rule 5 should not have been modified for this reason. In the proceedings initiated under Rule 14 of Cenvat Credit Rules, the credit in respect of these services has been allowed as stated above. Accordingly disallowing the refund claim under Rule 5 of Cenvat Credit Rules would not be justified as has been held in the decisions as follows:- Cross Tab Marketing Services Pvt. Ltd. [2021 (55) GSTL 29 (Tri.-Mumbai)] BNP Paribas India Solution Pvt. Ltd. [2022 (58) GSTL 539 (Tri.-Mumbai)] Qualcomm I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund that is admissible; (B) Net CENVAT credit means total CENVAT credit availed on inputs and input services by the manufacturer or the output service provider reduced by the amount reversed in terms of sub-rule (5C) of rule 3, during the relevant period; (C) Export turnover of goods means the value of final products and intermediate products cleared during the relevant period and exported without payment of Central Excise duty under bond or letter of undertaking; (D) Export turnover of services means the value of the export service calculated in the following manner, namely:- Export turnover of services = payments received during the relevant period for export services + export services whose provision has been completed for which payment had been received in advance in any period prior to the relevant period advances received for export services for which the provision of service has not been completed during the relevant period; (E) Total turnover means sum total of the value of (a) all excisable goods cleared during the relevant period including exempted goods, dutiable goods and excisable goods exported; (b) export turnover o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f by undertaking such exercise while adjudging the refund claim filed in terms of Rule 5. In the case of Accelya Kale Solutions Ltd. Vs. Commissioner of Central Goods Service Tax and Central Excise, Mumbai [2018-TIOL 2452- CESTAT-MUM]. tribunal observed, as under:- 3. Rule 5 of Cenvat Credit Rules, 2004, was substituted vide Notification No. 18/2012-CE (NT) dated 17.03.2012, with effect from 01.04.2012. The said substituted rule has prescribed the formula for claiming refund of service tax by the service provider. Under such amended rule in vogue, there is no requirement of satisfying the nexus between the input services and the output service provided by the service provider. Consequent upon substitution of the said Rule in the Union Budget 2012, the Tax Research Unit (TRU) of CBEC vide letter dated 16.03.2012 has clarified as under:- F.1. Simplified scheme for refunds: 1. A simplified scheme for refunds is being introduced by substituting the entire Rule 5 of Cenvat Credit Rules, 2004. The new scheme does not require the kind of correlation that is needed at present between exports and input services used in such exports. Duties or taxes paid on any goods or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overed both pre-and post-amendment period and also the services which are in issue herein. So far as the decision in the matter of Maersk Global (supra) is concerned, I am afraid that the Learned Authorised Representative is not correct in his submission that the said decision pertains to preamendment period. Similarly, while interpreting Rule 5 this Tribunal in the matter of M/s. Cross Tab Marketing Service Pvt. Ltd. v. C.C. GST, Mumbai East; reported in 2021-VIL-466- CESTAT-MUM-ST = 2021 (55) G.S.T.L. 29 (Tri. - Mumbai) vide order dated 17-9-2021 held that the amended Rule 5 ibid does not require establishment of any nexus between input and export services. The rule only provides that the admissible refund will be proportional to the ratio of export turnover of goods and services to the total turnover, during the period under consideration and the net Cenvat credit taken during that period. Indisputably, in the refund proceedings under Rule 5 ibid as amended, any such attempt to deny or to vary the credit availed during the period under consideration is not permissible. If the quantum of the Cenvat credit is to be varied or to be denied on the ground that certain services do not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as Leave or Home Travel Concession, when such services are used primarily for personal use or consumption of any employee; (emphasis supplied) I find that the above mentioned definition does not require for one to one relation between Input and output services. However, the same should not be used primarily for personal use or consumption of any employee. This condition is a yardstick for taking credit of service tax. I find that in the case of Mediacom Media India Pvt. Ltd vs. CCG ST, Mumbai East reported vide 2019 (10) TMI 690 (CESTAT Mumbai) it was also held that where input service had been debited to Profit and Loss Account of the exporter as a business expense, the Cenvat Credit should be eligible. I further find that in the case M/s. 3D PLM Software Solutions Ltd V/s. Commissioner of S.T., Mumbai-VII under 2018(13) G.S.T.L.325 (Tri. -Mumbai) it is specifically mentioned that: I find that the Appellant have sought refund of Cenvat credit availed by them. Part of the refund claim has been rejected alleging that the nexus between the input services and the export services has not been established. In this regard, the clarification issued by the C.B.E C vide C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nput services. The medical benefit extended to the employees, insurance policy to cover the risk of accidents to the vehicle as well as the person, certainly would be a part of the salary paid to the employees. Landscaping of factory or garden certainly would fall within the concept of modernization, renovation, repair, etc., of the office premises. It is to discharge a statutory obligation, when the employer spends money to maintain their factory premises in an eco-friendly, manner, certainly, the tax paid on such services would form part of the costs of the final products. In those circumstances, the Tribunal was right in holding that the service tax paid in all these cases would fall within the input services and the assessee is entitled to the benefit thereof. In that view of the matter, we do not see any infirmity in the order passed by the Tribunal. Accordingly, the substantial questions of law framed in this appeal are answered in favour of the assessee and against the revenue. The appeal is dismissed. (emphasis supplied) In view of the above, I find that the various input services described in para GG of the Grounds of Appeal submitted by the Appellant fulfill the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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