Custom, Excise & Service Tax Tribunal
Ubs Service Centre (India) Pvt. Ltd vs Commissioner Of Customs, Central ... on 23 September, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 21811 / 2014 Appeal(s) Involved: ST/522/2010-DB [Arising out of Order-in-Appeal No. 24/2009 dated 21/12/2009 passed by the Commissioner of Customs, Central Excise and Service Tax, Hyderabad] UBS Service Centre (India) Pvt. Ltd. Plot No.24, 25 & 26, Financial District, Nanakramguda, Hyderabad. Appellant(s) Versus Commissioner of Customs, Central Excise and Service Tax Hyderabad-IV Posnett Bhavan, Tilak Road, Ramkote, Hyderabad - 500 001 Andhra Pradesh Respondent(s)
Appearance:
Mr. G. Shivadass & Mr. Harish R, Advocates 505-208, 5th Floor, Brigade Plaza (North Block), No. 71/1 Subedar Chatram Road, Anand Rao Circle, Bangalore 560 009 For the Appellant Mr. R. Gurunathan, AR For the Respondent CORAM:
HON'BLE SHRI B.S.V. MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER Date of Hearing: 23/09/2014 Date of Decision: 23/09/2014 Order Per: B.S.V. MURTHY Three refund claims for the period from June 2007 to September 2007 have been rejected. The refund claims were filed under Rule 5 of CENVAT Credit Rules for refund of CENVAT credit which could not be utilized by the appellant for demand of service tax on the output services. The appellant is providing back office services to the overseas affiliates of UBS Group in connection with data processing, data analysis, transaction processing etc.
2. Learned counsel on behalf of the appellant submitted as under:
For the period July 2006 to March 2007, the refund claims filed by the appellant were granted by the adjudicating authority. However, the matter came up before this Honble Tribunal when the Department filed an appeal in ST/591/2009 and the matter was remanded to the original authority with a direction to re-examine the nature of activity performed by the appellant and classify the same appropriately either under ITSS, BSS or BAS. For another series of refunds filed for the period from October 2007 to October 2011, the Commissioner (A) had allowed the refunds on certain grounds (accepted by Committee of Commissioners) and remanded the matter back to the Original Authority only to examine the question of time bar. The Deputy Commissioner examined the claims vide Order-in-Original No. 339/2013 dated 31.12.2013 and inter alia observed at pg. 8 of the order that the activity of the appellant was that of Business Auxiliary Service. Thus it is submitted that once a stand has been taken by the Department, the same cannot be reopened once again to the prejudice of the appellant.
2.1. It was also submitted by the learned counsel that the issues relating to question of output service and whether refund is admissible when the overseas service is exempt have been considered in the Interim Order No. 79 to 152/2014 dated 18.09.2014 in para 6.12 and it has been held in favour of the appellant. We also find valid force in the following submission of the appellant.
a) Activity of appellant is classifiable as business auxiliary service and not information technology service as evidenced by the Agreement enclosed at pg. 1-21 of compilation.
b) Exemption is not a criterion for denying refund under Rule 5 of the Export of Service Rules, 2005, as long as the activity of the appellant is mentioned as a taxable service u/s. 65(105) of the Act.
c) Alternatively, customized software can be treated as goods (which are not exempted goods) and refund may be granted on the basis of export of goods.
3. In view of the above and also in view of the fact that for the earlier period refund has already been granted and interim order passed by this Tribunal covers the issue the matter is required to be remanded to the original authority for fresh consideration adjudicating the observations in the impugned order and also the decision of Commissioner (Appeals) into account and arrive at a final decision. Needless to say any adverse decision before it is taken, the appellant should be put to notice with the reasons and details so that appellant can make submissions before a final decision is taken. (Operative portion of the order has been pronounced in open court on 23.09.2014) (S.K. MOHANTY) JUDICIAL MEMBER (B.S.V. MURTHY) TECHNICAL MEMBER iss