Custom, Excise & Service Tax Tribunal
M/S. Ge India Technology Centre Pvt. Ltd vs Commissioner Of Service Tax ... on 21 July, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 21082 / 2014 Application(s) Involved: ST/Stay/27524/2013 in ST/27225/2013-DB Appeal(s) Involved: ST/27225/2013-DB [Arising out of Order-in-Appeal No.139/2013 dated 12/04/2013 passed by Commissioner of Central Excise and Service Tax, BANGALORE-II (Appeal).] M/s. GE India Technology Centre Pvt. Ltd. No.122, EPIP, White Field Road, BANGALORE - 560006 KARNATAKA Appellant(s) Versus Commissioner of Service Tax BANGALORE-SERVICE TAX NULL 1ST TO 5TH FLOOR, TTMC BUILDING, above BMTC BUS STAND,DOMLUR BANGALORE - 560071 KARNATAKA Respondent(s)
Appearance:
Mr.L.S. Karthikeyan, Advocate LAKSHMI KUMARAN & SRIDHARAN WORLD TRADE CENTRE NO.404-406, 4TH FLOOR, SOUTH WING BRIGADE GATEWAY CAMPUS NO.26/1, DR. RAJKUMAR ROAD, BANGALORE - 560 055 KARNATAKA For the Appellant Mr. S. Teli, Dy. Commissioner (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: 21/07/2014 Date of Decision: 21/07/2014 Order Per : B.S.V.MURTHY In the impugned order, it has been held that appellant is not eligible for CENVAT credit of Rs.20,69,258/- taken during the period from April 2005 to September 2007. Besides demanding interest, penalty has been imposed equal to the amount of CENVAT credit disallowed and demanded.
2. Learned counsel submits that credit has been disallowed on the following services viz., Chartered Accountant services, Business Auxiliary Services, Event Management Service, Photography service, Installation and Commissioning service, Mandap Keeper service, Insurance service and Management and Business Consultancy service. He submits that in respect of services other than Insurance and Consultancy services, the authorities have taken a view that the input services do not qualify as an essential input service. Prima facie, we do not find this observation to be in accordance with law. The law requires an input service to be used for providing output service and essentiality is not one of the requirements specified in the law or definition. In any case as submitted by the learned counsel, the following decisions support he case of the appellant.
* Indian Chamber of Commerce vs. CIT: 1976 (1) SCC 324-SC * Varuna Sulphonators Pvt. Ltd. vs. UOI: 1993 (68) ELT 42 (All.) * Daga Nylomet Pvt. Ltd. vs. Commissioner: 1993 (67) ELT 270 (Cal.) * Collector of Central Excise vs. Rajasthan State Chemical Works: 1991 (55) ELT 444 (SC) * UOI vs. Ahmedabad Electricity Co. Ltd.: 2003 (158) ELT 3 (SC) * Union Carbide India Ltd. vs. CCE, Calcutta: 1996 (86) ELT 613 * Mazagaon Dock Ltd. vs. The Commissioner of Income Tax and Excess Profits Tax: AIR 1958 SC 861.
* M/s. Coca Cola India Pvt. Ltd. vs. The Commissioner of Central Excise, Pune: 2009 (242) ELT 168 (Bom.) * Commissioner vs. Ultratech Cement Ltd.: 2010 (20) STR 577 (Bom.) Therefore we take a view that appellant is eligible for the benefit of service tax credit.
2.1 As regards CA service, the decision in the case of Dell International Services Pvt. Ltd.: 2010 (17) STR 540 (Tri.-Bang.) supports the case of the appellant. As regards Event Management and Photography service also the same decision supports their case.
2.2 As regards Insurance service, the appellant relied upon the decision rendered in the case of Stanzen Toyotetsu India Pvt. Ltd.: 2011-TIOL-866-HC-KAR-ST.
3. We find ourselves in agreement with the submissions of the appellant except for the Insurance service alone. As regards Insurance service, in our opinion, the rejection on the ground that appellants did not substantiate that they have actually incurred the expenses and did not recover from the employees is valid. In the normal course, we should have remanded the matter at this stage itself. However, the submissions made by the learned counsel which are briefly given below, made us reach the conclusion that the appeal itself can be allowed at this stage rather than considering the stay application or remanding the matter, etc.
4. The learned counsel submitted that in the appellants own case, the rebate claims filed by the appellant had come up before the Tribunal and the rebate claim included amounts in dispute in this case also. He submitted that while the matter was being heard by the Tribunal, they had made a submission that in respect of these amounts since the appeal is pending and the matter has not attained finality, they would voluntarily forego the rebate on this entire amount. Since appellants are not claiming the rebate which is admissible to them, the only question that arises is whether the appellant should pay the amount of Rs.7,78,245/- with interest or should it be sent back for verification. Assuming that the entire amount is payable, it would show that the appellants have already reversed the entire amount of CENVAT credit in dispute in this case. Only interest would be payable on the insurance service. It was also submitted that the reversal took place within about three years from the date of availment of the credit. Therefore, the interest cannot be more than Rs.4 lakhs whereas after taking the insurance service amount assuming the whole amount is inadmissible there would be still more than Rs.12 lakhs available which has already been reversed but admissible. The learned counsel submits that they would like to end the litigation totally and therefore they would not request for recredit of the CENVAT credit taken by them and in view of the fact that interest payable would be substantially less than the amount of credit admissible, the whole issue can be settled by taking a view that the entire demand is not sustainable but no further credit or debit is required to be made by the appellant. We find this a reasonable and good suggestion. Accordingly, appeal is decided on above terms in the sense the appellant would neither be entitled for CENVAT credit nor would be liable to pay any further amount.
(Operative portion of the order has been pronounced in open court) S.K. MOHANTY JUDICIAL MEMBER B.S.V.MURTHY TECHNICAL MEMBER rv 3