9911796707
TMI Blog2025 (3) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... e services, Health Insurance, outdoor catering, beauty treatment, health services, cosmetic and plastic surgery, membership of a club, health and fitness centre, life insurance, health insurance and travel benefits extended to employees etc., were excluded from the purview of definition of input service, and in the eventuality, when the said excluded category of service(s) are used primarily for personal use or consumption of any employee. In other words, CENVAT credit of service tax paid on such service(s) should not be considered as input service, entitling an assessee to avail CENVAT credit thereon. Health & fitness service - HELD THAT:- The records placed in file and sample invoices indicate that these services have been used to keep a check over the wellness or health of a person, before taking up the assignment in the appellants company and for taking up job assignments/projects from time to time. Further, the invoices have been billed to the company and not for the individuals for their personal consumption. Hence, these services are eligible to be considered as 'input service'. Further, it is also found that the Tribunal in the case of SITEL India Limited [2016 (3) TMI 203 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on other than the name of service provider, in order to relate to the output service provided by the appellants. It is unable to examine the factual aspect as no invoices or supporting documents have been produced by the appellants. Therefore, these services are not eligible to be considered as eligible input service. Rent-a-Cab service - HELD THAT:- The adjudicating authority had given a finding that even though the services have been availed prior to 01.04.2011, that may not be the ground to allow these services as eligible input service. In this regard, it is found that it is an undisputed fact that such services have been availed by the appellants for the period upto 31.03.2011 for claiming as eligible input credit and not thereafter. The CBIC in its Circular No.943/4/2011-CX dated 29.04.2011 had clarified that the credit available on rent-a-cab service received before 01.04.2011 should be available as input credit if its provision had been completed before 01.04.2011even though the invoices could have been received subsequently i.e., after 01.04.2011 - Rent-a-Cab services received prior to 01.04.2011 in the present case is eligible input service, for taking CENVAT Credit. Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent ORDER PER : M.M. PARTHIBAN This appeal has been filed by M/s Capgemini Technology Services India Limited, Navi Mumbai (herein after referred to, for short, as "the appellants") assailing Order-in-Original No.61-62/CGST-NM/Commr/KV/ 2020-21 dated 25.03.2021 (hereinafter referred to, for short, as "the impugned order") passed by the Commissioner, Central Tax & Central Excise, Navi Mumbai. 2.1 The brief facts of the case are that the appellants herein isengaged in the business of providing IT and IT enabled services in various technology areas, Management Consultancy and other services which are taxable under the Finance Act, 1994 for payment service tax. For this purpose the appellants have registered themselves with the jurisdictional service tax authorities and have obtained service tax registration certificate No.AAACK2632BST002. The appellants also avail CENVAT credit of service tax paid on input services as per the provisions of CENVAT Credit Rules, 2004 (for short, referred to as 'CCR'). 2.2 During the course of EA-2000 audit conducted by the Department on the books of account maintained by the appellants, the Department had enquired about the appellant's a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Tribunal in its Final Order No. A/85770/2019 dated 07.03.2019 had observed that in order to find out the eligibility of a particular service as 'input service' under definition contained in Rule 2 (l) ibid, the nature and the purpose of use of the service in the ultimate provision of the output service is required to be examined inasmuch as the parameters of eligibility of such credit differs from case to case basis and standard practice cannot be adopted uniformly in judging such eligibility to the CENVAT benefit. Therefore, the Tribunal had allowed the appeal filed by the appellants, by way of remand to the original authority for proper and effective adjudication of the matter, in line with the observations made therein. Further, the said order of the Tribunal also directed that the original authority should examine the case laws relied upon by both sides for the fact finding, whether the benefit of CENVAT credit should be available to the appellant. 2.3 In adjudication of the dispute in remand proceedings, the learned Commissioner in the impugned order dated 25.03.2021 had confirmed the demand of service tax amounting to Rs. 3,60,81,814/- along with interest; and imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such services received prior to 01.04.2011 were allowed as CENVAT credit. Similarly, he stated that they had provided the decisions of the Tribunal, specimen documents on the basis of which credit was taken in their detailed written submissions, additional written submissions made before the Tribunal. He further stated that in their own case, the Tribunal vide Final Order dated 30.05.2019 had allowed CENVAT credit in respect of input services viz. Event management, Mandap keeper service, General insurance & Insurance auxiliary service and Goods Transport Operator services. Therefore, he claimed that the confirmation of adjudged demands in the impugned order is not sustainable. 3.3 Learned Advocate in support of their stand, relied upon the following CBIC Circular, decisions of the Tribunal: (i) Tata Teleservices (Maharashtra) Limited Vs. Commissioner of Service Tax, Mumbai-II - Larger Bench Interim Order No.05/2024 dated 18.03.2024 (ii) CBIC CircularNo.943/²/2011-CX dated 29.04.2011 (iii) Innovasynth (I) Technologies Ltd.Vs. Commissioner of C.Ex., Raigad- 2015 (38)S.T.R. 1232 (Tri. - Mumbai.) (iv) J.P. Morgan Services India Pvt. Ltd. Vs. Commr. ofC.Ex. (S.T.), Mumbai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility for availing CENVAT credit on the service tax paid thereon. The disputed period covered in the two SCNs are from 2007-08 to 2011-12 and 2012-13. 7. Rule 3 of the Cenvat Credit Rules, 2004 is the enabling provision, which entitles a service provider for availment of the credit facility in respect of service tax paid on the input services used/utilized for accomplishing the activities of providing the taxable output services. Insofar as the definition of 'input service' is concerned, Rule 2(l) ibid defining the said term has three main category of services specified for coverage or exclusion under its scope. The first category is the 'means' part, which includes any service used by a provider of output service for providing an output service, where the usage of services can be explicitly observed as being used for providing output service. The second category of input services are those which have been specifically provided under the 'inclusion' part, which are like services used in relation to modernisation, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service, entitling an assessee to avail CENVAT credit thereon. 8.2 As the disputed period covers both the pre-amended and post amendment period, by applying the aforesaid yardsticks, we may carefully examine each of the disputed services, to determine whether those services are covered under the definition of 'input service' as specified in Rule 2(l) of CCR of 2004 in the following paragraphs. In order to find out the eligibility of a particular service as 'input service' under such definition, the nature and the purpose of use of the service in the ultimate provision of the output service is required to be examined inasmuch as the parameters of eligibility of such credit differs from case to case basis. 8.3 Learned Adjudicating Authority had broadly grouped the disputed services under 15 categories for his examination and in all such cases, except in the case of club & association services and Storage & warehousing services had denied the CENVAT credit on the basis of his findings recorded in the impugned order. We have also examined these aspects and in respect of the each of the disputed services, we would herein deal with the issue of its eligibility in the following paragrap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... & Insurance Auxiliary Service and GTA Service and the appeal is allowed in favour of the appellant. The impugned order sustains, so far as it denied the Cenvat Credit on catering service. However, interest and penalty confirmed on such service is set aside." 8.6 In respect of 'health & fitness service' , the records placed in file and sample invoices indicate that these services have been used to keep a check over the wellness or health of a person, before taking up the assignment in the appellants company and for taking up job assignments/projects from time to time. Further, the invoices have been billed to the company and not for the individuals for their personal consumption. Hence, we are of the view that these services are eligible to be considered as 'input service'. Further, we also find that the Tribunal in the case of SITEL India Limited (supra) have held that health and fitness service as eligible input service, where the output service is being provided on 24X7 basis, which is also the situation in the present case. The relevant paragraph of the said order is given below: "5. ....I find that to decide whether service is an input service or otherwise, it cannot be dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services were used for packaging and movement of various goods procured for use in the provision of output services, we are not able to find any evidence to such claim in the documents placed in the appeal records or in any of the written submissions given by the appellants. In such a factual position, we are unable to find any basis for allowing such services used for personal consumption of employees under the category of eligible input service and therefore consider these services as ineligible input service. 8.9 It has been claimed by the appellants that 'public relations service', 'people relationship management service' have been engaged to conduct events by professional consultants to increase the brand value and visibility in order to promote its business. We find that the Co-ordinate Bench of the Tribunal in the case of Orient Bell Limited (supra) have examined the public relations service and have held that these are having an objective of enhancing Brand Value, support to Marketing & Promotional Initiatives, Building Corporate image, Creating Awareness etc. to enable the company in providing enhanced output services. In view of the above, we are of the view that these s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lusive limb of the definition. It is not necessary for the appellant to establish an integral connection between the service and business of manufacture for the said service to be categorized as 'input service' under rule 2(l) of the CENVAT Rules for the period prior to 01.04.2011'." On the basis of above CBIC circular and the decision held by the Larger Bench of the Tribunal, we one of the view that the Rent-a-Cab services received prior to 01.04.2011 in the present case is eligible input service, for taking CENVAT Credit. 9.3 In respect of 'ship management services', transport services through waterways' and 'sound recording service', the adjudicating authority had found that no invoice have been produced by the appellants before him to substantiate the nature of such service and its usage in provision of output service. Further, in respect of 'short term accommodation service', the adjudicating authority had found that such stays by the employees traveling for work are more in the nature of personal consumption. We also could not examine the factual aspect as no invoices or supporting documents have been produced by the appellants for such services. Therefore, we are of the v ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
