Custom, Excise & Service Tax Tribunal
Cst Bangalore vs Marketics Technologies India Pvt. Ltd on 3 January, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 20044 / 2014 Appeal(s) Involved: ST/184/2009-SM [Arising out of Order-in-Appeal No. 295/2008 dated 28/11/2008 passed by the Commissioner of Central Excise, Bangalore] CST BANGALORE 16/1 S.P. Complex, Lalbagh Road, Wilson Garden, Bangalore - 560 027 Karnataka Appellant(s) Versus Marketics Technologies India Pvt. Ltd. No. 1137, 3rd Floor, 200 Ft. Road, Indiranagar, Bangalore - 560 038 Respondent(s)
Appearance:
Mr. Ganesh Haavanur, Additional Commissioner (AR) For the Appellant None For the Respondent CORAM:
HON'BLE SHRI B.S.V. MURTHY, TECHNICAL MEMBER Date of Hearing: 03/01/2014 Date of Decision: 03/01/2014 The respondent is a 100% EOU engaged in providing Business Support Service. They filed a refund claim on 27.12.2007 for Rs. 17,50,033/- for the period from 10/2006 to 03/2007 under Notification No. 5/2006 dated 14.03.2006 CE (NT). The claim was for the accumulated unutilized CENVAT credit of service tax paid by them on input services. As many as 15 input services were involved and the original adjudicating authority rejected the claim on the ground that there was no nexus between output service and the input services. The Commissioner (Appeals) while considering the appeal filed by the assessee, allowed some services as eligible and rejected the claim for the remaining services. Revenue is aggrieved by this decision and filed appeal against this decision. In the appeal it has been stated that Security Agency service, Manpower Recruitment Service, Maintenance Service on which credit has been allowed by the authority, should not have been allowed since the party has not explained how exactly the said services are used in providing the output taxable service. In the memorandum of appeal there is no explanation as to why these services have to be considered as having no nexus with the final output service. The Revenues contention is that adjudicating authority had considered this and therefore Commissioner (Appeals) should have considered the matter in detail and the appellant-assessee should have explained more. The very fact that assessee was in appeal before the Commissioner (Appeals) is because the assessee was not in agreement with adjudicating authority. The very fact that Commissioner (Appeals) has passed an order taking the contrary view is because he has considered the submissions and therefore may have a different opinion which may not exactly be the same as that of the adjudicating authority. In my opinion the services on which credit has been allowed by the Commissioner (Appeals) can be definitely said to have nexus with output service and therefore I do not find anything wrong in the order passed by the Commissioner (Appeals).
2. The learned AR made a submission that the Commissioner should have taken care to ensure that the refund was allowed in accordance with provisions of notification. Since the final refund has not been sanctioned, if there are any requirements to be fulfilled in accordance with the notification such as working out credit admissible in proportion to the exports actually made can be taken into account and implemented by the original adjudicating authority and in the absence of any observation on this aspect by the Commissioner (Appeals), the original adjudicating authority will not be restricted in this regard. In the result, I uphold the order of the Commissioner (Appeals). At the same time the original adjudicating authority is required to ensure that working out the admissibility of differential credit of refund should be done appropriately in accordance with Notification No. 5/2006 excepting the decision relating to the services in respect of which credit is admissible which would be done as a combination of the order of the adjudicating authority and the appellate authority. The appeal is decided in above terms.
(Order dictated and pronounced in open court) (B.S.V. MURTHY) TECHNICAL MEMBER iss