Custom, Excise & Service Tax Tribunal
Infosys Bpo Ltd vs Bangalore Service Tax- I on 31 March, 2022
Service Tax appeal No.930 of 2009
Service Tax appeal No.535 of 2010
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
BANGALORE
REGIONAL BENCH - COURT NO. 1
Service Tax Appeal No. 930 of 2009
[Arising out of Order-in-Appeal No. 52/2009 dated
27/08/2009 passed by Commissioner of Central
Excise(Appeals-II), Bangalore]
Infosys BPO Ltd
26/3, 26/4, 26/6, Electronics City,
Hosur Road, Bangalore Appellant(s)
KARNATAKA
560100
VERSUS
C.C.E & C.S.T.-Bangalore Service
Tax- I
1ST TO 5TH FLOOR,
TTMC BUILDING, above BMTC BUS STAND, Respondent(s)
DOMLUR BANGALORE, KARNATAKA 560071 AND Service Tax Appeal No. 535 of 2010 [Arising out of Order-in-Appeal No. 52/2009 dated 27/08/2009 passed by Commissioner of Central Excise(Appeals-II), Bangalore] C.C.E & C.S.T.-Bangalore Service Tax- I 1ST TO 5TH FLOOR, TTMC BUILDING, above BMTC BUS STAND, DOMLUR Appellant(s) BANGALORE, KARNATAKA 560071 VERSUS Infosys BPO Ltd 26/3, 26/4, 26/6, Electronics City, Hosur Road, Bangalore Respondent(s) KARNATAKA 560100 Appearance:
Shri N. Anand, Advocate for the assessee. Smt. C.V. Savitha, Superintendent(AR) for the Revenue.1
Service Tax appeal No.930 of 2009 Service Tax appeal No.535 of 2010 CORAM:
HON'BLE MR. P. ANJANI KUMAR, TECHNICAL MEMBER HON'BLE MR. P DINESHA, JUDICIAL MEMBER Final Order No: 20135-20136 / 2022 Date of Hearing: 14/02/2022 Date of Decision: 31/03/2022 Per : P. DINESHA The assessee-appellant is a 100% software Export Oriented Unit engaged in providing services relating to information technology. The period of dispute is July 2006 to March 2007. The appellant filed a refund application on 15/02/2008 claiming refund of unutilised cenvat credit lying as on 31.03.2007. A show-cause notice was issued proposing to reject the above refund claim. In response to which, the assessee filed its detailed reply but however being not satisfied, the adjudicating authority vide the Order-in-Original dt. 31.07.2008 rejected the refund claim under Section 11B of the Central Excise Act, 1944 read with Section 83 of Finance Act, 1944 (sic.).
Aggrieved by the rejection, the assessee preferred an appeal before the Commissioner of Central Excise(Appeals-II), Bangalore and the Commissioner(Appeals) vide the impugned Order-in-Appeal No. 52/2009 dated 27/08/2009 allowed the appeal in part i.e. for the period 15/02/2007 to 31/03/2007 but whereas for the earlier period i.e. 01/07/2006 to 14/02/2007, the 2 Service Tax appeal No.930 of 2009 Service Tax appeal No.535 of 2010 application was held to be time barred. Against this Order-in-Appeal, both the assessee as well as Revenue have filed cross appeals.
2. Heard Shri N. Anand, learned advocate for the assessee and Smt. C.V. Savitha, learned Superintendent(AR) for the Revenue.
3. Learned advocate would, inter alia, submit that even though the refund claim was allowed for the period 15/02/2007 to 31/03/2007 but the same was directed to be given in respect of 13 input services holding to be the eligible input services while rejecting the balance 7 inputs services as ineligible input services. He would further submit that the Revenue having not objected to the availment of the cenvat credit on input services, the Revenue cannot be permitted to deny the refunds on the ground of ineligibility. In a nutshell, he would submit that the Department cannot question eligibility to credit while adjudicating the refund claim of the appellant under Rule 5 of the CENVAT Credit Rules, 2004. He would also rely on the following orders of various Benches of the Tribunal in support of his claim:-
i. Goldman Sachs Services Pvt. Ltd. Vs. CCT [2021(52) GSTL 425 (Tri. Bang.)] ii. K. Line Ship Management India Pvt. Ltd.
Vs. CCE [2017-TIOL-2406-CESTAT- MUM] iii. 24/7 Customer Pvt. Ltd. Vs. CCT [2021- TIOL-593-CESTAT-BANG] iv. Convergys India Services Pvt. Ltd. Vs. CCE [2020-TIOL-1696-CESTAT-CHD] v. CST Vs. Technip India Ltd. [2017-TIOL-
3708-CESTAT-MUM] 3 Service Tax appeal No.930 of 2009 Service Tax appeal No.535 of 2010
4. Per contra, learned AR while supporting the rejection of refund also relied on the decision of Hon'ble High Court of Andhra Pradesh in the case of CC,CE&ST, Hyderabad-IV Vs. Hyundai Motor India Engg. (P) Ltd. [2015(39) STR 984 (AP)].
5.1. We have heard the rival contentions and have gone through the orders/decisions relied upon during the course of arguments. We find that almost all input services used by the assessee in the case in hand have been considered by various Benches as well as higher judicial fora. Larger Bench of this Tribunal in the case of CCE Vs. Span Infotech (India) Pvt. Ltd.
[2018(12) GSTL 200 (T-LB)] has held that insofar as refund claims under Rule 5 ibid are concerned, the same have to be taken as the end of the quarter in which FIRCs received, if the refund claims are filed on a quarterly basis. Even the jurisdictional Hon'ble High Court of Karnataka has considered a similar issue in the case of Suretex 4 Service Tax appeal No.930 of 2009 Service Tax appeal No.535 of 2010 Prophylactics India Pvt. Ltd. Vs. CCE [2020(273) ELT 481 (Kar.)] held that "(i) time-limit envisaged in Section 11B of the CEA, 1944 is applicable even for claiming of refund under Rule 5 of the Cenvat Credit Rules; and (ii) time-limit has to be computed from the last date of the last month of the quarter which would be the relevant date for the purposes of examining if the claim is filed within the limitation prescribed under Section 11B or otherwise."
5.2. In view of the above ruling of the jurisdictional High Court, we are of the view that the Department's appeal lacks merit and is therefore dismissed.
6. From the decisions /orders relied upon by the learned advocate, we find that the assertions of the learned advocate to be correct insofar as his contentions that the Revenue has not disputed the eligibility or otherwise of the cenvat credit is concerned. Hence, as held in the case laws relied upon by the learned advocate, Revenue cannot be disputed the eligibility when the refund of the input service credit is claimed.
In view of the above, we are of the view that the 5 Service Tax appeal No.930 of 2009 Service Tax appeal No.535 of 2010 denial of refund cannot be sustained for which the impugned order is set aside to this extent and the appeal of the assessee is allowed with consequential relief, if any.
7. Both appeals are disposed of in above manner.
(Dictated and pronounced in open court on 31/03/2022) (P. ANJANI KUMAR) TECHNICAL MEMBER (P DINESHA) JUDICIAL MEMBER Raja...
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