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TMI Blog2025 (1) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... er Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No. 27/12-CE(NT) dated 18.06.2012 for the quarter July 2015 to September 2015. The Adjudicating Authority, after scrutinizing the refund claim filed by the Respondent-Assessee, passed the Order-in-Original dated 18.05.2016 where it sanctioned the refund claim in its entirety. 4. However, during the passing of the Order-in-Original, the Adjudicating Authority made observation that the Respondent-Assessee availed irregular Cenvat credit and such input services do not qualify as input services in terms of 2(1) of Cenvat Credit Rules. 5. Thereafter, the Respondent-Assessee filed an appeal against the order contesting that the Cenvat credit of Rs. 1,39,04,923/- is eligible as the services are covered within the definition of Input Services and that no Show Cause Notice SCN was issued before, holding the impugned input services as ineligible for credit. The Commissioner (Appeals-I) after duly considering the appeal submissions and case laws provided by the Respondent-Assessee, passed the Order-in-Appeal dated 31.03.2016, wherein it gave a detailed order, after evaluating each and every disputed service (total 7 services) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10) TMI 959 - CESTAT ALLAHABAD HCL Comnet Systems and Services v. CC & CE & ST, Noida, 2016 (8) TMI 1236-CESTAT ALLAHABAD, upheld by the Hon'ble Allahabad High Court vide 2017 (12) TMI 1661 - Allahabad High Court CCE, Noida v. Free Scale Semiconductors India (P.) Ltd. Final Order No. A/70385/2017-EX dated 10.04.2017 passed by the Hon'ble CETAT, Allahabad Indo Solar Ltd. v. CCE Noida, 2017 (357) E.L.T. 915 (Tri-All) Allied Chemical & Pharmaceuticals Pvt. Ltd. vs. CCE & ST, Jaipur-1, 2019 (2) TMI 849-CESTAT NEW DELHI Computer Science Corporation India Pvt. Ltd. v. CCE, Noida, 2017 (7) TMI 760-CESTAT ALLAHABAD CCE, NOIDA v. Free Scale Semiconductors India (P) Ltd., 2017 (4) TMI 1238-CESTAT ALLAHABAD M/s Gemini Software Solutions Pvt. Ltd. v. Commissioner of Central Excise, Customs and Service Tax Trivandrum 2020 (1) TMI 844-CESTAT BANGLORE 9. Heard both the sides and perused the Appeal records. 10. We find that the Respondent-Assessee filed a refund claim amounting to Rs.15 crore under Rule 5 of the CENVAT Credit Rules, 2004 read with Notification No.27/2012-CE(NT) dated 18.06.2012 in respect of un-utilized CENVAT Credit involved on input services claimed to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , hence, I take the domestic clearance as submitted by the party in their refund claim. (iv) The party availed irregular input cenvat credit amounting to Rs. 1,39,04,923/- against the services like charges of rent for car parking, cafeteria/canteen and canteen maintenance charges, invoices raised to unregistered premises. Charges GYM equipment's, charges for photocopy and binding print/copying of matter, Event management services used for recreation of employees. Charges for Tatto and content writing, charges for gardener/garden maintenance service, charges for creative service, charges for video creation graphics charges, charges for supply of tea, coffee. food, charges for digital photography, charges for agenda design info graphic charges/poster design and logo description charges for corporate cup and charges for parries show, laundry charges. services utilized at unregistered premises etc., and find that these services have no nexus with the export of their output services and also not qualify as input services in Terms of Rule 2(1) of Cenvat Credit Rules, 2004. (v) I further observe that the party has also availed Cenvat Credit amounting to Rs. 2,43,80,417/- on invoic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 27/2012-CE(N.T.) dated 18.06.2012. they are pre eligible for refund of Rs. 15,00,00,000/-. (viii) The exporter have also informed about the debit of an amount of Rs. 15,00,00,000/- vide Accounting document No. 5000112346 dt.21.03.2016 which is equal to refund claimed, from their Cenvat Credit Account in compliance to Notification No. 27/2012-CE (NT) dated 18.06.2012. In view of the above discussions and findings I am of the view that the party is entitled for refund of Rs. 15,00,00,000/- pertaining to unutilized accumulated cenvat credit during the said period July 2015 to September 2015 under Rule 5 of cenvat credit Rules, 2004 read with Notification No. 27/2-CE(NT) dt.18.06.12. Since, the party is exporting maximum of its output services, the party is not in position to utilize the Cenvat Credit accumulated, hence, i find the party is eligible for refund of Rs.15.00,00,000/- under Rule 5 of Cenvat Credit Rules, 2004. The claim has been pre-audited by the Assistant Commissioner (Audit). Central Excise, Noida conveyed vide letter C.No.V(1) Audit/ST/Pre-audit/HCL Tech./65/2016/2322 dated 16.05.2016. Accordingly: I pass the following order - ORDER I hereby sanctio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e., for provision of output service. Hon'ble CESTAT, New Delhi, in the case of Goodyear India Ltd. Vs CCE, Delhi-IV, as reported in 2015(321) ELT 320, has held as under: Cenvat credit - Car parking services - Input services on car parking availed by appellant at their Head office for parking of cars of management Activity is directly related to the business of manufacturing of appellant Cenvat credit admissible - Rule 2(1) of Cenvat Credit Rules, 2004. [para 3] Accordingly, I hold that the adjudicating authority erred in denying the credit of Service Tax involved on the said service. 2. Invoices raised at unregistered premises: The adjudicating authority has denied the said credit by holding that these services have no nexus with the export of services and do not qualify as input services in terms of Rule 2(1) of the CCR. The appellant, in this regard, has submitted that the place where the input service is received by the output service provider is not relevant for determining the admissibility of the credit on such input service and once a service conforms to the definition of 'input service', the service provider will be eligible for taking credit of Service Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the department as a condition precedent for claiming Cenvat credit is concerned, learned counsel appearing for both parties were unable to point out any provision in the Cenvat Credit Rules which impose such restriction. In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law. Therefore, said finding recorded by the Tribunal as well as by the lower authorities cannot be sustained. Accordingly, it is set aside." Moreover, I find that Rule 3(1) of the CCR, reads as follows : (1) A manufacturer or producer of final products or a provider of output service shall be allowed to take credit (hereinafter referred to as the CENVAT credit) of- (i)....... (ix) the service tax leviable under section 66 of the Finance Act; (ixa) the service tax leviable under section 66A of the Finance Act; (ixb) the service tax leviable under section 66B of the Finance Act: (x) the Education Cess on taxable services leviable under section 91 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Indian Oil Corporation Ltd. Vs CCE, Mumbai-ll, as reported in 2016(41) STR 515, has held as under: Cenvat credit Input services Courier service, Xerox service, rent-a-cab service Assessee is entitled to credit of Service Tax paid on such services-These services are input services in relation to the business of assessee as manufacturer and service provider - Rule 2(1) of Cenvat Credit Rules. 2004. (para 5] Moreover, these services have been held as input services by the then Commissioner (Appeals), Central Excise Appeals-l, Meerut, vide order-in-appeal number NOI/SVTAX/000/APPEALS-1/92/2014-15 dated 19.01.2015 also by me, vide orders-in- appeal number NOI/SVTAX/000/APPEALS-1/266,2788356/2016-17dated 22/12/2016,28/12/2016 & 21.02.2017 respectively, in the appellant's own cases. Accordingly, I hold that the adjudicating authority erred in denying the credit of Service Tax involved on the said service. 4. Credit involved on event management service, charges for content writing and charges for creative services: The appellant has submitted that he had organized events for conveying the business policy and the system to his employees, which are used for augmenta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enance service - Garden relating to manufacture A good garden creates better atmosphere and environment increasing working efficiency - Rule 2(1) of Cenvat Credit Rules, 2004. [para 44.2] Also, Hon'ble CESTAT Mumbai, in the case of Hindustan National Glass & Industries Ltd. Vs CCE, Nashik, as reported in 2016(41) STR 527(Tri.-Mum.), has held as under: Cenvat credit Denial of Input services - Vehicle maintenance, Group Health Insurance and Entertainment services - Nexus with manufacturing activity HELD: As per recorded facts in Order-in-Original, all impugned services related to production activity Vehicle maintenance necessary for use by factory staff. Group Health Insurance provided to staff and workers and garden maintained under statutory obligation - Cenvat credit admissible - Rule 2(1) of Cenvat Credit Rules, 2004. [para 4] Accordingly, on the basis of case laws(supra), I hold that the adjudicating authority erred in denying the credit of Service Tax involved on the said service. 6. Credit involved on domestic courier charges: The appellant, in this regard, has submitted that courier services are used for despatch of documents to his various offices and to his cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts and customers and therefore, the same is nothing but an input service and credit of the same should be allowed. In this regard, I find that all these activities are related to the advertisement and sales promotion activity of the appellant, as without promotional activities, business cannot prosper. The definition of 'input service', as provided under Rule 2(1) of the CCR, specifically includes services used in advertisement and sales promotion. Hon'ble CESTAT, Mumbai, in the case of John Deere India Pvt Ltd. Vs CCE, Pune-III, as reported in 2016(41) STR 990(Tri- Mum.), has held as under. Cenvat credit of Service Tax Input service credit-Air Travel Agencies Services, Cargo Handling Services, Courier Service, Management, Maintenance & Repair Services, Outdoor Catering Services, Rent-a-Cab Services, Renting of Immovable Property, Mandap Keeper's Services, Sound Recording Services, General Insurance Services, Event Management Services, Construction Services, Auctioneer's Services, Business Support Services, Telecommunication Services, Architect's Services HELD: Issues raised by Revenue held in favour of assessee by judgments in Coca Cola India Pvt. Ltd. [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e manner prescribed under Section 73 of the Finance Act, 1994. The basic requirement for effecting recovery of the Cenvat credit under the said statutory provision is for initiation of show cause proceedings within the stipulated time frame and thereafter, for adjudication of the dispute arising there from. In the present case, it is an undisputed fact on record that the department had not proceeded against the appellant for effecting recovery of the allegedly availed irregular Cenvat credit, by taking recourse to Rule 14 ibid read with Section 73 ibid. On the other hand, the department had raised the issue of non-establishment of nexus between the input services and exported output service for the first time, while adjudicating the subject refund claims filed under Rule 5 ibid by the appellant." [Emphasis Supplied] 14. Further the Respondent-Assessee filed the appeal before the Commissioner (Appeals) not against the order of the Assistant Commissioner but against the observations made in discussion and findings of the Order. Learned Commissioner (Appeals) multiplied these findings without any change in the order portion which in any case was in accordance with the claim filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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