Custom, Excise & Service Tax Tribunal
M/S Exl Service.Com India Pvt. Ltd vs Commissioner Of C.Ex. & Customs, Noida on 5 January, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
REGIONAL BENCH : ALLAHABAD
S.T.Appeal No.518/09
Arising out of OIA No.86/CE/APPL/NOIDA/09 dated 27/03/2009 passed by the Commissioner (Appeals), Central Excise & Customs & S.Tax, Noida.
For approval and signature:
HONBLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL)
1. Whether Press Reporters may be allowed to see
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982? : No
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not? : Yes
3. Whether His Lordship wishes to see the fair copy
of the Order? : Seen
4. Whether Order is to be circulated to the Departmental
Authorities? : Yes
M/s EXL Service.Com India Pvt. Ltd.
APPELLANT(S)
VERSUS
Commissioner of C.Ex. & Customs, Noida
RESPONDENT (S)
APPEARANCE Ms. Khushboo Jain, C.A. for the Appellant (s) Shri Chatru Singh, Asstt.Commr. (A.R.) for the Respondent CORAM:
HONBLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) DATE OF HEARING & PRONOUNCEMENT : 05.01.2016 ORDER NO.__________________________ Per Mr. Anil Choudhary :
The Appellant, M/s EXL Service.Com India Pvt. Ltd., is in Appeal against Order-in-Appeal No. 86/CE/APPL/NOIDA/09 dated 27/03/2009 passed by the Commissioner (Appeals), Central Excise & Customs & S.Tax, Noida.
2. The brief facts are that the appellant is an exporter of service having Central Excise Registration dated 21/8/2006 and registered as an 100% EOU with the office of Development Commissioner, NSEZ, Noida and is engaged in providing business of the service for the client located outside India. For the period January to March 2007 the appellant preferred refund claim of input credit availed which could not be utilized due to the export nature of the output services amounting to Rs.81,21,592/-. Vide order dated 13/6/2008 part of the refund claim was allowed amounting to Rs.45,58,308/- and the balance was rejected. Being aggrieved, the appellant preferred appeal before ld. Commissioner (Appeals) who allowed the appeal in part upholding the disallowance with respect to input services received at unregistered premises at the relevant time amounting to Rs.2,05,860,/-, with respect to services received from travel agent Rs.30,598/-, with respect to guest house expenses Rs.27,265/-, for invoices not produced Rs.15,839, for service received from vendor not registered under proper category Rs.7,344/ and Rs. 3060/- as the name of the appellant assessee was not mentioned on the invoice.
3. Thus, the appellant assessee is in appeal with respect to the disallowance upheld. As regards, the disallowance of Rs. 2,05,860/- the premises being unregistered, the ld.Counsel explains that the premises in Sector 62, Noida had been subsequently taken after the centralised registration in the year 2006. Further, application for addition of the said promises, was made on 7/6/07 and the same have been approved by revenue on 1/8/2007. That in view of the fact that the appellant assessee is registered with the Central Excise and service tax Department and the premises in question have been subsequently approved and added in the registration certificate, the disallowance is bad. The ld. Counsel further relies on the ruling of the Honourable Karnataka High Court in the case of mPortal India Wireless Solutions Pvt. Ltd. Vs. C.S.T., Bangalore : 2012 (27) STR 134 (Kar) wherein the Honourable High Court have held that in case of export of service for seeking refund of Cenvat credit the status of being registered is not required.
4. So far the next ground is concerned with respect to services of travel agent or travel helpdesk amounting to be 30,598/- is concerned, it is urged that the ld.Commissioner erred in upholding the disallowance by observing that as the appellant is an exporter of service, they can have no business of travelling within India for business purposes. The said finding this extraneous and no disallowance can be sustained of the same. It is further emphasised that the service in relation to business travel and hence the services received from the travel agent is fully allowable as input services. So far the services received at guest house relating to service tax of Rs.27,265/- is concerned, it is stated that the guest house is used for business purposes. The travelling executives from other branch offices stay at the guest house for business purposes and as such guest house has indirect nexus with the business of the assessee. Input services received are allowable having direct or indirect nexus with the business of the assessee and as such prays for allowing the same. So far the amount of Rs. 15,839/- is concerned for invoices not produced, the appellant has produced before this Tribunal two invoices, one of Rs.7,500/- being service tax paid for Internet service and the other invoice has been produced with regard to professional service received for Rs.689/- totalling Rs.8,189/-. The ld. Counsel prays that the claim be allowed to the extent invoices, are available, not produced earlier. As regards amount of Rs.7044/- disallowed for the reason that the vendor is not listed in proper category the ld. Counsel draws my attention to the copy of invoice annexed at page 292 of the appeal book wherein the invoice having been raised by Micro Corporation on the assessee towards software charges Rs.60,000/ for providing 3 months of support and service tax was Rs.7344/- have been charged therein. The ld. Counsel stated that there is no dispute with regard to the nature of service and/or receipt of the service or its nexus with the appellant's business. Only for the reason that the provider of service is registered in different categories or classification of service cannot be the ground for rejection and as such the same is fully allowable. The last disallowance is regarding to invoices raised by manpower recruitment agencies wherein the name of the appellant is not mentioned on the invoice. The ld. Counsel for the applicant has produced the invoices at pages 293 to 296 of the appeal book. Out of the 4 invoices, 3 invoices are raised in the name of one Mr.Jagat Sabharwal. The invoices were received in the receipt Department of the appellant assessee. The ld. Counsel urges that the appellant have received services and have paid the amount for the service along with service tax and as such the same should be allowed.
3. The ld.A.R. for revenue relies on various co-ordinate bench rulings of this Tribunal in the case of Market Creators Ltd. Vs. CCE : 2014 TIOL 2021 CESTAT-AHM wherein the fact was that the assessee was registered for providing stock/broker services from the premises at Creative Castle, Vadodra. The assessee had taken Cenvat credit of service tax paid on hiring charges of premises taken by them on rent at 4th Floor, Darpan Apartment, R.C.Dutt Road, Vadodara used by them as Document Retention Centre for storage of number of documents pertaining to the Stock Broker Business. This hired premises was neither registered with the services Department nor used to render any output service directly. The rent receipt did not bear address of the hired premises. The assessee had also availed Cenvat credit on input services used at other unregistered premises located at Junagarh, Jamnagar and Vodadara, from where no output service was provided. This Tribunal, under such circumstances, held that the unregistered premises ought to be registered as ISD (input service distributor) in terms of the Service Tax (Registration of Special Category of Persons) Rules, 2005 read with rule 7 of CCR and as such appellant cannot take credit on the basis of documents issued by non-registered premises as per ISD under the service tax provisions. The ld. A.R. also relies on the ruling in the case of Hindustan Zinc Ltd. Vs. CCE 2007 TIOL 2214 CESTAT- Delhi, by another co-ordinate bench of this Tribunal wherein under the fact that the assessee was engaged in the manufacture of lead and zinc concentrates and they had availed Cenvat credit on the basis of invoices issued by CEAT Ltd. to the depot which was duly endorsed in favour of the assessee, the adjudicating authority disallowed the credit and imposed penalty. This Tribunal observed that there is no dispute that the invoice was not issued in the name of the assessee. I do not find force in the submission of the assessee that that is no requirement to mention the recipient name in the duty paying document and in absence of document as prescribed under rule 7 (1)(a) of the CCR the disallowance of credit was upheld.
4. Having considered the rival contentions, I hold that so far the amount of Rs. 2,05,860/-, is concerned, the same is allowable in view of the fact that the premises in question have been subsequently recognised and added in the centralized registration certificate. Moreover, registration is not a precondition for refund of Cenvat credit in case of an exporter of service as held by Honourable Karnataka High Court in the case of mPortal India Wireless Solutions Pvt. Ltd (supra). So far the travel agent service is concerned, I hold that the same have been wrongly disallowed by the learned Commissioner and I hold the same as allowable. So far the services received at guest house is concerned for Rs. 27,265/- I hold the same is allowable as the guest house is used for business purposes and have got indirect nexus with the business of the appellant. So far invoice, not produced, is concerned, I allow the Cenvat credit to the extent of Rs. 8,189/- being the amount of the invoices produced now before this Tribunal during the course of hearing. So far the disallowance of Rs.7,344/- is concerned on the ground that the provider of service is not registred under proper category, I hold that the disallowance is bad in law, the same is held allowable. So far the invoices for Rs.3060/- with respect to manpower recruitment service is concerned, I remand the issue to the adjudicating authority with a direction to examine the supporting evidences which may be available in the nature of appointment letter to the concerned persons, who have been named in the invoice of the service provider. If the person shown in the invoices, who has been selected by the recruting agent and offered to the appellant for employment, and supporting evidences are produced by the appellant as to providing employment to such persons, payment of salary et cetera, the said amount will be allowable subject the said verification by the adjudicating authority.
5. Thus, the appeal is allowed in part as indicated above and remanded for verification of the amount of Rs.3060/- towards manpower recruitment service. The appellant is also directed to appear before the concerned authority with a copy of this order and produce supporting documents with regard to the receipt of manpower recruitment service by them.
(Dictated and pronounced in the open Court) Sd/ (ANIL CHOUDHARY) MEMBER (JUDICIAL) mm 8 S.T. Appeal No.518/09