Custom, Excise & Service Tax Tribunal
Warburg Pincus India Pvt. Ltd vs Commissioner Of Service Tax-I, Mumbai on 13 March, 2018
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPEAL Nos. ST/86694, 86695, 86697, 86698/17 (Arising out of Order-in-Appeal No. PK/ST-I/MUM/227-230/2016-17 dated 31.3.2017 passed by Commissioner of Service Tax (Appeals), Mumbai-I) Warburg Pincus India Pvt. Ltd. Appellant Vs. Commissioner of Service Tax-I, Mumbai Respondent
Appearance:
Shri Gajendra Jain, Advocate, for appellant Shri V.R. Reddy, Assistant Commissioner (AR), for respondent CORAM:
Honble Mr. Ramesh Nair, Member (Judicial) Date of Hearing: 20.2.2018 Date of Decision: 13.3.2018 ORDER NO In all these appeals, the identical issue involved is that whether rejection of refund claim on the ground that certain services are not admissible input service is correct or otherwise.
2. Shri Gajendra Jain, learned counsel appearing on behalf of the appellant, submits that firstly, the refund claim filed under Rule 5 was rejected on the ground that certain services viz. courier agency services, hotel accommodation, restaurant services, mandap keeper and club or association membership services are not admissible input services in terms of Rule 2(l) of Cenvat Credit Rules, 2004. He submits that no show cause notice for denial of the cenvat credit on these services was issued. Therefore, at the stage of refund without following the process of adjudication on the issue of admissibility of input service is not proper. Secondly, all these services are agency service for providing the output service by the appellant. In respect of all these services, this Tribunal has taken a view that these are the admissible input services. In this regard, he placed reliance on the following judgments:-
(i) Astra Lifecare (India) Pvt. Ltd. 2018 (2) TMI 617-CESTAT Ahmedabad;
(ii) Qualcomm India Pvt. Ltd. 2016 (42) STR 886 (Tri.-Mumbai);
(iii) Ranchi Club Ltd. 2012 (26) STR 401 (Jhar.);
(iv) One Advertising & Communication Services Ltd. 2012 (27) STR 344 (Tri.-Ahmd.);
(v) Maruti Suzuki India Ltd. 2017 (49) STR 261 (P&H);
(vi) Dr. Reddys Laboratories Ltd. 2016 (11) TMI 858 CESTAT Hyderabad.
3. Shri V.R. Reddy, learned Assistant Commissioner (AR) appearing on behalf of Revenue, reiterates the findings of the impugned order.
4. On careful consideration of the submissions made by both the sides and on perusal of records, I find that firstly, the adjudicating authority in the refund application filed by the appellant, rejected part of the refund on the ground that certain services in respect of which the refund claim was sought for are not admissible services. The act of the adjudicating authority is totally illegal and arbitrary for the reason that the appellant has availed the cenvat credit and in respect of which they filed the refund claim. If at all the adjudicating authority is of the view that certain input service is not admissible for the purpose of cenvat credit, he should have issued a separate show cause notice and after carrying out the process of adjudication, order should have been passed holding that whether the said input services are admissible input services or not. Thereafter a decision on refund should have been taken. However, without carrying out the process of adjudication, he straightaway rejected the refund claim, which is not legal and proper. Further, on going through the nature of the service, I find that all these services in question are directly used by the service provider i.e. the appellant. In various judgments cited by the learned counsel, this Tribunal and various High Courts consistently held that all these services are input service for providing the output service. Hence the cenvat credit is admissible.
5. Accordingly, the impugned order to the extent it rejected the refund claim on the service tax paid in respect of the input services, as discussed above, is not legal and proper. Therefore, the impugned order stands modified and the appeals are allowed.
(Pronounced in court on 13.3.2018) (Ramesh Nair) Member (Judicial) tvu 1 4 ST/86694, 86695, 86697, 86698/17