Custom, Excise & Service Tax Tribunal
Commissioner Of Customs And Service Tax ... vs M/S. Ge Medical Systems (India) Pvt Ltd on 21 December, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: C/864/2011-SM, C/865/2011-SM, C/866/2011-SM, C/867/2011-SM, C/868/2011-SM, C/869/2011-SM, C/870/2011-SM, C/871/2011-SM, C/872/2011-SM, C/873/2011-SM [Arising out of Order-in-Appeal No. 185/2010 dated 29/09/2010 passed by the Commissioner of Customs (Appeals), Bangalore.] Commissioner of Customs and Service Tax BANGALORE-CUS C.R. BUILDING,QUEENS ROAD, P.B.NO. 5400, BANGALORE 560 001. KARNATAKA Appellant(s) Versus M/s. GE MEDICAL SYSTEMS (INDIA) PVT LTD NO.122, (PART-1) EPIP, WHITEFILED, BANGALORE Respondent(s)
Appearance:
Mrs. Ezhilmathi, AR For the Respondent Shri. G. Shivadass, Advocate Date of Hearing: 21/12/2016 Date of Decision: 21/12/2016 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 21443-21452 / 2016 Per : S.S GARG The Department has filed 10 appeals against the impugned order dated 29.9.2010 vide which the Commissioner (A) dismissed 10 appeals filed by the Department against the Order-in-Original passed by the Deputy Commissioner of Custom. Since the issue in all the 10 appeals is identical, therefore all the 10 appeals are being disposed of by this common order. The details of the appeals are tabulated below: Appeal No. Period Refund claimed Refund allowed C/864/2011 July 2006-Septebmer 2006 October 06 - December 06 January 2007- March 2007 Rs.24,45,174/-
Rs.24,37,944/-
C/865/2011 April 2007- June 2007 Rs.13,37,982/-
Rs.13,37,982/-
C/866/2011 July 2007- Sept 2007 Rs.19,04,280/-
Rs.18,58,950/-
C/867/2011 October 2007 Rs.12,95,338/-
Rs.12,76,949/-
C/868/2011 November 2007 Rs.16,28,989/-
Rs.16,08,578/-
C/869/201 I March 2008 Rs.9,36,215/-
Rs.9,29,489/-
C/870/2011 April 2008 Rs.13,56,675/-
Rs.13,55,860/-
C/871/2011 May 2008 Rs.5,56,327/-
Rs.5,49,906/-
C/872/2011 June 2008 Rs.3,05,645/-
Rs.3,03,791/-
C/873/2011 July 2008 Rs.4,88,870/-
Rs.4,64,277/-
2. Briefly the facts of the case are that the respondent-assessee is a 100% EOU and engaged in the manufacture and export of medical diagnostic equipment. They filed application for refund of CENVAT credit under Rule 5 of CENVAT Credit Rules (CCR), 2004 availed on various services said to be utilized for the purpose of manufacture and export of their finished goods. The Deputy Commissioner of Customs vide his order dated 19.10.2009 has allowed refund of unutilized CENVAT credit availed on the services like car/van transport for employees, catering service, CHA, Chartered Accountant, Cleaning, commercial training, consultancy engineering, courier service, document copying charges, interior decoration, maintenance and repair, management consultancy and rent-a-cab service, etc. Aggrieved by the said order, Department filed an appeal before the Commissioner (A) on the ground that the inputs in respect of which credit of service tax is claimed are not utilized in or in relation to the goods exported. The Commissioner (A) vide his order dated 29.9.2010 upheld the Order-in-Original and dismissed the appeals filed by the Department. Aggrieved by the said order, the Department has filed the present appeals.
3. Heard learned AR and the counsel for the respondent.
4. The learned AR submitted that the impugned services are to be used directly or indirectly, in or in relation to the manufacture and there is nothing on record to show that the said services are used for manufacture of goods. She further submitted that the impugned services do not qualify as input service used in or in relation to the manufacture of goods in terms of Rule 2(l) of CCR, 2004. She further submitted that in terms of Circular No.120/01/2010-ST, all the services which are relevant to the manufacture of the export goods, directly or indirectly only are eligible for availing credit and consequently refund of unutilized credit. The test of eligibility is the relevance or the nexus to manufacture of export goods and it is not the intention of the statute to refund all the service tax credit to a 100% EOU.
5. On the other hand, the learned counsel for the respondent submitted that both the authorities have rightly allowed the refund of CENVAT credit as the said services were used in or in relation to the business and he further submitted that the definition of input service is not restricted to services used in or in relation to manufacture of final product but extends to all services used in relation to the business of manufacturing the final product. He also submitted that all the services involved in the present case have been held to be input service as per the various decisions rendered by the Tribunal as well as the High Courts and in support of each service, he has given the following decisions.
Input Services Relevant case laws Outdoor Catering * Commissioner v. Bell Ceramics Ltd 2012 (25) STR 428 (Kar.) * CCE. Bangalore-III v. Stanzen Toyotetsu India (P) Ltd. 2011 (23) STR 444 (Kar.) * CCE, Nagpur vs. Ultratech Cement Ltd 2010 (260) ELT 369 (Bom.) * Commissioner v. GTC Industries Ltd. 2008 (12) STR 468 (Tribunal-LB) * CCE & ST, LTU, Bangalore vs. Ace Designers Ltd., 2012 (26) STR 193 (Kar) * Paramount Communication Ltd vs. CCE, Jaipur, 2013 (287) ELT 70 (Tri.-Del.) Chartered accountant service * CST Vs. M/s. Aviva Global Services (Bangalore) Pvt Ltd, 2012-TIOL- I 582-CESTAT-BANG * Convergus India Services P. Ltd. v. Commr of Service Tax, New Delhi 2012 (25) STR 251 (Tri.-Del.) * Utopia India Pvt. Ltd. v. Commissioner of Service Tax, Bangalore 2011 (23) STR 25 (Tri.-Bang.) Cleaning Activity * Itc Ltd. v. Commissioner of Central Excise, Hyderabad 2010 (17) S.T.R. 146 (Tri. - Bang.) Commercial Training * Convergus India Services P. Ltd. v. Commr of Service Tax, New Delhi 2012 (25) STR 251 (Tri.-Del.) Consulting Engineer Services * Rajratan Global Wires Ltd. v. Commissioner of C. Ex., Indore 2011 (21) STR 383 (Tri.-Del.) * Dalmia Cements (Bharat) Ltd. Vs. CCE, New Delhi, 2012 (284) ELT 65 (Tri-Del) Business Support Services * CCE, Jalandhar v. Ambika Forgings, 2010 (259) ELT 593 (Tri.-Del.) * Utopia India Pvt. Ltd v. Commissioner of Service Tax, Bangalore 2011 (23) STR 25 (Tri-Bang.) Interior decorator service * Millipore India Ltd. v. Commissioner of Central Excise, Bangalore-II 2009 (13) S.T.R. 616 (Tri. - Bang.) Document copying charges/ Xerox service * IOCL vs. CCE, Mumbai - 2016 (41) S.T.R. 515 (Tri. - Mumbai) * Affinity Express India Pvt. Ltd. vs. CCE, Pune - 2015 (40) S.T.R. 808 (Tri. - Mumbai) Management, Maintenance or Repair Service * KPMG v. Commissioner of Central Excise, New Delhi 2014 33 STR 96 (Tri-Del.) * Cadila Healthcare Ltd. v. Commissioner of C. Ex., Ahmedabad 2010 (17) STR 134 (Tri.-Ahmd) * Jeans Knit P. Ltd v. Commissioner of Customs, Bangalore 2011 (21) STR 460 (Tri.-Bang.) * CCE, Vapi vs Alidhara Textool Engineers Pvt. Ltd., 2009 (239) ELT 334 (Tri.-Ahmd.) Management or Business Consultancy service * KPMG v. Commissioner of Central Excise, New Delhi 2014 33 STR 96 (Tri-Del.) * Cadila Pharmaceuticals Ltd v. CCE, Ahmedabad, 2010 (17) STR 31 (Tri.-Ahmd.) * Convergys India Services P. Ltd v. CST, New Delhi 2012 (25) STR 251 (Tri.-Del.) * CCE, Noida v. M/s. Wood Motherson Elastomer Ltd, 2012-TIOL-102-CESTAT-DEL Rent-a-Cab Scheme Operators service * CCE, Chandigarh v. M/s. Federal Mogul Goetze (India) Ltd., 201 1-TIOL-650-HC-P&H-ST * CCE, Bangalore-III v. Stanzen Toyotetsu India (P) Ltd. 2011 (23) STR 444 (Kar.) * CCE, Bangalore-I v. Bell Ceramics Ltd. 2012 (25) STR 428 (Kar.)
6. The learned AR has also stated that the respondent has claimed refund on health club and fitness service which does not fall in the definition of input service. In counter, the learned counsel for the respondent has fairly agreed to reverse the CENVAT credit, if any, taken with regard to health club and fitness service.
7. After considering the submissions of both the parties and the decisions cited supra, I am of the considered opinion that there is no illegality in the impugned order. Both the authorities have rightly allowed the refund of CENVAT credit. The appeals of the Revenue do not have any merit and the same are dismissed except the CENVAT credit, if any, taken by the respondent with regard to health club and fitness service, which the respondent has agreed to reverse.
(Operative portion of the Order was pronounced in Open Court on 21/12/2016.) S.S GARG JUDICIAL MEMBER rv 7