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Appearance:

Mr. Deepak Jain, CA DEEPAK KHIVANSARA & ASSOCIATES GREEN APPLE, NO 16, 1ST FLOOR, MURPHY ROAD BANGALORE - 560008 Karnataka For the Appellant Mr. Pakshirajan, AR For the Respondent Date of Hearing: 02/01/2018 Date of Decision: 02/01/2018 CORAM:

HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 20018-20019 / 2018 Per : S.S GARG These two appeals have been filed by the appellant against the common impugned order dated 2.8.2017 passed by the Commissioner (A) whereby the Commissioner (A) has disposed of four Orders-in-Original. Out of the four Orders-in-Original, these two appeals have been filed against Order-in-Original No.122-R/2016 dated 31.3.2016 and Order-in-Original No.123-R/2016 dated 31.3.2016. Vide the impugned order, the Commissioner (A) has set aside the original order and allowed the refund subject to the appellant submitting the SOFTEX copies duly certified by Software Technology Park of India (STPI) authorities to the Assistant Commissioner for verification.

Management, Maintenance or Repair Service Rs.47,832/-

Management or Business Consultants Services Rs.41,531/-

ST/21647/2017 July 2014 to September 2014 Submission of STPI certificate Rs.12,96,104/-

3. Heard both the parties and perused the records.

4. Learned consultant submitted that in these two appeals refund has been rejected by the original authority but the Commissioner (A) vide the impugned order has set aside the Order-in-Original by holding that the benefit of Business Auxiliary Service rendered by the appellant has accrued to the principal located abroad and hence, the services amounts to export by the appellant. He further submitted that the Commissioner (A) has put a condition on the refund to be granted and as per the condition, the appellant is supposed to submit the SOFTEX copies duly certified by STPI authorities to the Assistant Commissioner for verification. He further submitted that this condition is not legally sustainable in law. Thereafter, as per the direction of the Commissioner (A), appellant moved an application to the Director of STPI seeking the SOFTEX copies for Business Auxiliary Service. But the STPI authorities vide their communication dated 1.11.2017 informed the appellant that SOFTEX need to be filed for software/ITES exports done through Data Communication Link and need not be filed for Business Auxiliary Service. Thereafter, the appellant again approached the Commissioner (A) for deleting the requirement of SOFTEX certificate but the Commissioner (A) did not accede to their request and therefore, the appellant has filed these two appeals.

5. On the other hand, the learned AR reiterated the findings of the impugned order.

6. After considering the submissions of both the parties, I find that as far as rejection of refund on input services on Management, Maintenance or Repair Service and Management or Business Consultants service, is wrong and not sustainable. These two services have been held to be eligible input services as per the decisions cited supra. Moreover, in appellants own case, this Tribunal has already held them as eligible input services. Further, I find that the submission of certificate issued by STPI authority is not required for claiming the refund under the Business Auxiliary Services and the STPI have also clarified the same vide its communication dated 1.11.2017. Therefore, in view of this, I find that the Commissioner (A)s order is not sustainable in law and therefore, I set aside the impugned order to this extent vide which he has directed the party to submit the SOFTEX duly certified by STPI authorities. With these modifications, both the appeals are allowed to the extent prayed before me and the lower authorities will quantify the refund amount after verifying the documents and thereafter, sanction the eligible amount of refund.