Custom, Excise & Service Tax Tribunal
M/S. Nvidia Graphics Pvt Ltd vs Commissioner Of Service Tax Bangalore ... on 13 January, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: ST/20673/2016-SM, ST/20674/2016-SM, ST/20675/2016-SM, ST/20676/2016-SM, ST/20677/2016-SM, ST/20678/2016-SM, ST/20679/2016-SM, ST/20791/2016-DB [Arising out of Order-in-Appeal No. 05-17/2016 dated 29/01/2016 passed by Commissioner of Central Excise , BANGALORE ] M/s. Nvidia Graphics Pvt Ltd Mr. Vinit Agarwal Finance Director C1-jacaranda, Wing-a, Manyata Embassy Business Park, Outer Ring Road BANGALORE - 560045 KARNATAKA Appellant(s) Versus Commissioner of Service Tax BANGALORE SERVICE TAX- I 1ST TO 5TH FLOOR, TTMC BUILDING, above BMTC BUS STAND,DOMLUR BANGALORE, - 560071 KARNATAKA Respondent(s)
Appearance:
Mr. Deepak Kumar Jain, CA DEEPAK KHIVANSARA & ASSOCIATES GREEN APPLE, NO 16, 1ST FLOOR, MURPHY ROAD BANGALORE - 560008 Karnataka For the Appellant Mr. Pakshi Rajan, AR For the Respondent Date of Hearing: 13/01/2017 Date of Decision: 13/01/2017 CORAM:
SHRI S.S. GARG, HONBLE MEMBER (JUDICIAL) Final Order No. 20055-20057 / 2017 Per : S.S. GARG, The present appeals are directed against the common impugned order dated 29.1.2016 passed by the Commissioner (A) whereby the Commissioner (A) has allowed the refund of CENVAT credit with regard to certain input services and rejected the refund with regard to certain other input services mainly on the ground of nexus.
2. Briefly the facts of the case are that the appellant is engaged in providing information technology software service and registered under the category of Information Technology Software Service, Management consultants, Maintenance and Repairs, Consulting Engineers, Business Auxiliary Services, Commercial Training and Coaching Service, Design Services, Intellectual Property, Architect Services, Public Relation Services and Erection Commission and Installation. Appellant being eligible to claim refund of unutilised CENVAT credit under Rule 5, filed various refund claims before the original authority. Thereafter the Assistant Commissioner issued a show-cause notice proposing to reject the refund claims on various grounds. After following the due procedure, the Assistant Commissioner disallowed a part of the refund by the order dated 10.10.2014. Aggrieved by the said order, the appellant filed appeal before the Commissioner (A) who by impugned order partially allowed the claim of the appellant by holding certain services as eligible and certain others not eligible. Hence, the present appeals.
3. Heard both the parties and perused the records.
4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly considering the definition of input service as contained in Rule 2(l) of CCR, 2004. He further submitted that the impugned order has been passed ignoring the judicial precedents. Learned counsel has given a list of services for which refund has been rejected and its nexus and the case laws by which the said services has been held to be input services which is reproduced herein below:
Classification of Service Amount Case law reference Management or Business Consultant Services Rs.60,00371/-
Heartland Bangalore Transcription Services (P) Ltd. vs. CST: 2011 (21) STR 430 (Tri.-Bang.) Semco Electricals Pvt. Ltd. vs. CCE, Pune: 2011-TIOL-965-CESTAT-MUM. Jeans Knit Pvt. Ltd. vs. CCE, Bangalore: 2011 (21) STR 460 (Tri.-Bang.) Castrol India Ltd. vs. CCE, Vapi: 2013 (291) ELT 469 (Tri.-Ahmd.) Kijiji (India) Pvt. Ltd. vs. CCE: 2013 (32) STR 661 (Tri.-Mum.) CCE vs. MMS Maritime (India) Pvt. Ltd. : 2016 (41) STR 869 (Tri.-Mum.) Renting of Immovable Property Service Rs.27,79,699/-
CST, Bangalore vs. Mercedes Benz Research & Development India (P) Ltd.: 2013 (30) STR 257 (Tri.-Bang.) Nuware Systems Pvt. Ltd.: 2015 (39) STR 134 (Tri.-Bang.) Even Management Service Rs.22,88,339/-
Castrol India Ltd. vs. CCE, Vapi: 2013 (291) ELT 469 (Tri.-Ahmd.) JP Morgan Service (I) Pvt. Ltd. vs. CST, Mumbai: 2016 (42) STR 196 (Tri.-Mum.) HCL Technologies Ltd. vs. CCE, Noida: 2015 (40) STR 369 (Tri.-Del.) Toyota Kirlosakr Motor Pvt. Ltd. vs. CCE: 2011 (24) STR 645 (Tri.-Bang.) Endurance Technologies Pvt. Ltd. vs. CCE, Aurangabad: 2013 (32) STR 95 (Tri.-Mum.) Public Relations Management Service Rs.5,82,310/-
Final Order No.20808-20810/2016 dt. 21.9.2016 Sponsorship Service Rs.3,03,845/-
HCL Technologies Ltd. vs. CCE: 2015 (40) STR 369 (Tri.-Del.) Architects Services Rs.1,55,324/-
Final Order No.20808-20810/2016 dt. 21.9.2016 Interior Decorators Service Rs.1,47,676/-
JP Morgan Service (I) Pvt. Ltd. vs. CST, Mumbai: 2016 (42) STR 196 (Tri.-Mum.) Packaging Service Rs.90,023/-
JP Morgan Service (I) Pvt. Ltd. vs. CST, Mumbai: 2016 (42) STR 196 (Tri.-Mum.) Real Estate Agency Services Rs.65,632/-
Membership and Subscriptions Rs.51,294/-
Alliance Global Services IT India Pvt. Ltd. vs. CCE & ST, Hyderabad-IV: TS-240-CESTAT-2016-ST Club or Association Service Rs.37,080/-
Alliance Global Services IT India Pvt. Ltd. vs. CCE & ST, Hyderabad-IV: TS-240-CESTAT-2016-ST Site Formation and clearance, excavation and earthmoving and demolition service Rs.13,970/-
Dry Cleaning Service Rs.13,596/-
Balkrishna Industries Ltd. vs. CCE: 2010 (254) ELT 301 (Tri.) Rotork Control India P. Ltd. vs. CCE: 2010 (20) STR 684 (Tri.) CCE, Salem vs. ITC Ltd: 2011-TIOL-780-CESTAT-MAD. NTF (India) Ltd. vs. CCE: 2013 (30) STR 575 (Tri.-Del.) Paper Products Ltd. vs. CCE: 2013 (30) STR 310 (Tri-Mum.) CST vs. Yokogawa IA Technologies India Pvt. Ltd.: 2011 (24) STR 465 (Tri.-Bang.) HCL Technologies Ltd. vs. CCE: 2015 (40) STR 1124 (Tri.-Del.) Alliance Global Services IT India Pvt. Ltd. vs. CCE & ST, Hyderabad-IV: TS-240-CESTAT-2016-ST 4.1 Learned counsel further submitted that all these services fall in the definition of input services even after the amendment in the definition of input service w.e.f 1.4.2011. He also submitted that for the subsequent periods, in the appellants own case the department has allowed refund on these services and he has attached various orders where the department has allowed the refund on these input services by holding the same as input service.
5. On the other hand, the learned AR reiterated the findings of the impugned order.
6. After considering the submissions of both the parties, I find that the impugned order is not sustainable in law denying the refund on input services on account of lack of nexus. In view of the definition of input service as contained in Rule 2(l) of CCR all these input services are related to the provision of export service. Further for the subsequent period, the department itself has allowed the refund on all these services holding the same as input service and those orders have also been attached by the appellant along with his submissions. In view of the decisions cited supra, I am of the opinion that all these services fall in the definition of input service for which the appellant is entitled to claim refund subject to verification of the documents. Therefore, I allow all the appeals of the appellant.
(Operative portion of the Order was pronounced in Open Court on 13/01/2017.) S.S GARG JUDICIAL MEMBER rv 6