Custom, Excise & Service Tax Tribunal
M/S Chevron Phillips Chemicals India ... vs Commissioner Of Service Tax, Mumbai-Ii on 18 November, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. IV Appeal No. ST/86650 & 86651/16 (Arising out of Order-in-Appeal No. MUM-SVTAX-002-APP-229 & 230-15-16 dated 15.3.2016 passed by the Commissioner of Service Tax (Appeals), Mumbai-II). For approval and signature: Honble Shri Raju, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy : Seen of the order? 4. Whether order is to be circulated to the Departmental : Yes authorities? ====================================================== M/s Chevron Phillips Chemicals India Pvt. Ltd. Appellant Vs. Commissioner of Service Tax, Mumbai-II Respondent Appearance: Shri Harish Bindumadhvan, Advocate for Appellant Shri A.B. Kulgod, AC (AR) for Respondent CORAM: SHRI RAJU, MEMBER (TECHNICAL) Date of Hearing: 18.11.2016 Date of Decision: 29.12.2016 ORDER NO. Per: Raju
The appellants, M/s Chevron Phillips Chemicals India Pvt. Ltd., have filed these appeals against denial of refund of CENVAT Credit in respect of export of service. Aggrieved by the said order of the Commissioner (Appeals), the appellants are before Tribunal.
2. Learned Counsel argued that the fact that they have exported the service has been accepted in the impugned order and, therefore, refund of most of the input services has been allowed. However, refund of following input services has not been allowed: -
(a) Rent-a-cab Services
(b) Business Auxiliary Services
(c) Air Travel Agent Services
(d) Even Management Services
(e) Mandap Keeper Services
(f) Convention Services 2.1 Learned Counsel argued that they had produced the evidences like sample invoices before the lower authorities. However, lower authorities have wrongly rejected the said refund claim on the ground that there was no nexus shown. Learned Counsel argued that in case of Rent-a-cab services, while the contract with the service provider says that the services will be used by the officers but the contract also includes that the services can be used by the family members of the officers. He argued that while the said contract contains the clause regarding use of family, the sample invoices produced by him show that it has been used solely for the official purpose. He preferred same arguments for the following input services: -
(c) Air Travel Agent Services
(d) Even Management Services
(e) Mandap Keeper Services
(f) Convention Services 2.2 As regards Business Auxiliary Services, he argued that the said service was used for membership subscription fees to Organization of Plastic Processors of India. He argued that there cannot be any private use of the said services and, therefore, refund should have been allowed.
3. Learned AR relies on the impugned order.
4. I have gone through the rival submissions. I find that in so far as services to the membership subscription fees to Organization of Plastic Processors of India, same is admissible as there cannot be any private use of such subscription.
4.1 In so far as services listed at (a), (c), (d), (e) & (f) are concerned, the impugned order does not challenge the admissibility of credit per se but deny the same on the ground that no evidence has been produced that the said services have been used for provisions of output services and not for other purposes. I find that Rule 9(5) of Cenvat Credit Rules, 2004 clearly prescribes that the onus to maintain such record to link the inputs to the output services lies on the person taking the CENVAT Credit. The appellants have produced certain sample invoices, however, they are directed to produce the necessary evidences in terms of Rule 9(5) of the Cenvat Credit Rules before the original adjudicating authority. The impugned order is therefore set aside in respect of the above services and the matter is remanded to the original adjudicating authority. The appellants are free to produce necessary evidences before the original adjudicating authority.
5. The appeals are accordingly disposed of in the above terms.
(Pronounced in Court on 29.12.2016) (Raju) Member (Technical) Sinha 3 Appeal No. ST/86650-86651/16