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Judgment
Appellants have filed these two appeals against the common impugned order dated 17.3.2020 passed by the Commissioner (A) whereby the Commissioner (A) has rejected the refund claim of the appellant on certain input services and has upheld the order of the original authority. Since the disputed services involved in both the refund application is on identical issue, therefore both the appeals are taken up together for discussion and disposal.
Briefly the facts of the present case are that the appellant is engaged in the export of Call Centre Services (Business Auxiliary Service) besides domestic supply of Renting of Immovable Property service. Appellants are STPI unit located in Bangalore and they have availed CENVAT credit of service tax paid on various input services in respect of STPI unit and used the same in the export of services and rendering of taxable services in India. The CENVAT credit availed after setting of against output service tax liability arising on domestic services, and thereafter claimed as refund under Rule 5 of CENVAT Credit Rules. The details of the refund claimed, granted and denied are as follows:
Sl. No.
Details
Appeal No.ST/20259/2020
Appeal No.ST/20260/2020
1
Refund claim
Rs.1,24,65,993/-
Rs.2,28,32,774/-
2
Refund sanctioned in OIO by adjudicating authority
Rs.1,22,28,624/-
Rs.2,26,96,851/-
3
Refunded rejected in impugned order
Rs.2,37,369/-
Rs.1,35,923/-
The details of services on which refund is rejected and disputed in this appeal is as follows:
Sl. No.
Input service category for which refund disallowed
Disputed in ST/20259/2020
Disputed in ST/20260/2020
1
Business Auxiliary Service
√
√
2
Commercial Coaching or Training Services
√
√
3
Public Management Relations Service
√
√
4
Video Production Agency Service
√
√
5
Sponsorship Service
√
6
Mandeep Keeper Services
√
Heard both the parties and perused the records.
Learned counsel for the appellant submitted that the impugned order rejecting the refund claims of the appellant are not sustainable in law as the same has been passed without properly appreciating the facts and the law and the binding precedent decisions on identical issues. He further submitted that in the impugned order, the Commissioner (A) has disallowed the refund on the input services primarily on the ground that these input services do not have any nexus with the output services and they are not essential service, the absence of which adversely impact the quality and efficiency of the output services exported by relying on Circular No.120/01/2010-ST dated 19.1.2010. He further submitted that these services have been held to be input services by various decisions of the Tribunal and the High Court but the same has not been considered by both the authorities. He further submitted that as far as Business Auxiliary Services is concerned, under these services CENVAT credit of service tax paid on the input services availed relates to maintenance of indoor plants in the premises for maintaining clean environment, which is essential for the business and hence, it has a nexus to output services. In support of this submission, he has relied upon the following decisions wherein credit has been allowed for Garden Maintenance.
· Semco Electrical Pvt. Ltd. vs. CCE, Pune: 2010 (18) STR 177 (Tri.-Mum.)
· CCE, Bangalore-II vs. Millipore India Pvt. Ltd.: 20212 (26) STR 514 (Kar.)
· CCE, LTU, Chennai vs. Rane TRW Steering Systems Ltd.: 2015 (39) STR 3 (Mad.)
· Lifelong Meditech Ltd. s. CCE, Gurgaon-II: 2016 (44) STR 626 (Tri.-Chan.)
· Toyota Kirloskar Motor Pvt. Ltd. vs. CCE, LTU, Bangalore: 2016 (46) STR 69 (Tri.-Bang.)
· Orient Bell Ltd. vs. CCE, Noida: 2017 (52) STR 56 (Tri.-All.)
· Wipro Ltd. vs. CCE, Pondicherry: 2018 (10) GSTL 172 (Mad.)
The next service is Mandap Keeper and Restaurant Service, the learned counsel did not press for refund of service tax under this service because the learned DR raised an objection as these services has been specially excluded from the definition of 'input service' as prescribed under Section 2(l) of the CENVAT Credit Rules, 2004. As far as 'Commercial Training or Coaching Service' are concerned, the learned counsel submitted that this category of services were provided by M/s. Sports Outreach India, which is related to managerial shift programme as also noted in the invoice. The said services was received for upgradation of leadership skills, essential for export of service and is not for personal use or consumption of the employees as observed in the impugned order.
With regard to the Public Management Relation Service, the learned counsel submitted that the appellant has engaged public relation agency M/s. TLG Ltd. on retainer basis for press related activity with regard to promoting the activities of the company, in order to maintain public relation, create awareness of the job opportunities and export of call centre services offered by the company. He further submitted that the appellate authority did not consider the agreement entered into with Public Relation Agency M/s. TLG Ltd. and merely rejected the refund for the alleged nonsubmission of evidence. For this submission, the learned counsel relied upon the following decision in the case of Orient Bell Ltd. vs. CCE, Noida: 2017 (52) STR 56 (Tri.-All.).
With regard to Video Production Agency services, the learned counsel submitted that these services were availed for preparation of videos on the process and activity in rendering export of services. The service is also engaged for preparing video for training of employees and also in induction training of new recruits.
As far as Sponsorship Service is concerned, the learned counsel submitted that the purpose of sponsorship is to create awareness of the company to prospective clients and candidates for recruitment of quality talent. For this submission, he relied upon the decision in the case of HCL Technologies Ltd. vs. CCE, Noida : 2015 (40) STR 369 (Tri.-Del.).
Learned counsel further submitted that Rule 5 of CENVAT credit Rules, 2004 clearly provides that the appellant can claim refund of unutilized CENVAT credit and at the time of refund, eligibility of the credit cannot be questioned. In support of this, he relied upon the decision in the case of K Line Ship Management India Pvt. Ltd. vs. CST: 2017-TIOL-2406-CESTATMUM. He also submitted that the department had not questioned the input services and its utilization for rendering the output services. Learned counsel relied upon the decisions where the Tribunal has consistently held that refund cannot be denied on lack of nexus. For this, the relied upon the following decisions:
· Verisign Services India Pvt. Ltd. vs. CST, Bangalore-I: 2018 (12) GSTL 161 (Tri.-Bang.)
· Final Order dated 26.8.2019 in Appeal No.ST/88835/2018 in the case of M/s. Fractal Analytics Pvt. Ltd. vs. CGST, Mumbai East-CESTAT, Mumbai.
· Final Order No.20001/2020 dated 2.1.2020 in the case of M/s. Gemini Software Solutions Pvt. Ltd. vs. CCE, Trivandrum-CESTAT, Bangalore.
· Final Order No. A/30588/2020 dated 24.2.2020 in the case of Virtusa (India) Pvt. Ltd. vs. CCE, Hyderabad-II CESTAT.
· Final Order No. A/60416/2020 dated 8.12.2020 in the case of M/. Convergys India Services Pvt. Ltd. vs. CCE & ST, Gurgaon-I CESTAT, Chandigarh.
· Final Order No.A/85832-85833/2020 dated 3.1.2020 in the case of M/s. LRN Technology and Content solutions India Pvt. Ltd. vs. CCE, Mumbai.
The learned counsel also submitted that in view of the clarification given by the Tax Research Unit (TRU) of CBEC vide their letter D.O.F. No.334/1/2012-TRU dated 16.3.2012 effective from 1.4.2012 the amended Rule 5 of the CENVAT Credit Rules, 2004 does not require the correlation between the output service exported and the input services used in such output services exported. For this, he relied upon the following decisions:
· Final Order No.A/88016-88034/2018 dated 26.9.2018 in the case of K Line Ship Management India Pvt. Ltd. vs. CGST Mumbai West.
· Final Order No.60550/2019 dated 16.5.2019 in the case of M/s. Genpact India Pvt. Ltd. vs. CGST, Gurugram.
· Final Order No. A/87022-97030/2018 dated 1.8.2018 in the case of M/s. MSCI Services Pvt. Ltd. vs. CGST, Mumbai East.
· Final Order No. A/87465-87468/2019 dated 30.8.2019 in the case of M/s. Siemens Technology and Services Pvt. Ltd. vs. CGST, Mumbai Central.
· Final Order No.87490-87491/2019 dated 18.11.2019 in the case of M/s. Larsen & Toubro Infotech Ltd. vs. CGST, Mumbai East.
On the other hand, the learned AR reiterated the findings in the impugned order.
After considering the submissions of both the parties and perusal of records, I find that in the impugned order, the learned Commissioner has rejected the refund only on the ground of lack of nexus between the input services and the output services which is exported. Further, I find that all the services on which the refund has been rejected have been consistently held to be input services in various decisions relied upon by the appellant cited supra. Moreover, the Department has not questioned the service on input services at the time when the CENVAT credit was taken and a per the decision of this Tribunal in the case of K Line Ship Management cited supra, the Department is not permitted to question the same at the time of claiming refund. Further, in view of the clarification given by the Tax Research Unit of CBEC vide their letter dated 16.3.2012, the amended Rule 5 of CENVAT Credit Rules does not require correlation between the output service exported and the input services used in such output services exported. This has also been upheld by the Tribunal in various decisions cited supra. In view of my discussions above and by following the ratios of various decisions cited supra, I allow both the appeals of the appellant and hold that the appellant is entitled to refund of CENVAT credit except in the case of Mandap Keeper and Restaurant Services in appeal No.ST/20259/2020.
Both the appeals are accordingly disposed of in above terms.
(Operative portion of the Order was pronounced in Open Court on 08/03/2021.)