Case Law Details
Nvidia Graphics Pvt Ltd Vs The Commissioner of Service Tax (CESTAT Bangalore)
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.
FULL TEXT OF THE CESTAT ORDER IS AS FOLLOWS:-
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-R2016 dated 31.3.2016 and Order-in-Original No.123-R2016 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.
2. Briefly the facts of the case are that the appellants are engaged in providing Information Technology Software Service and Business Auxiliary Services. They filed refund claims seeking refund of unutilized CENVAT credit paid on input services used for the services exported by them during the impugned period under Rule 5 of CENVAT Credit Rules, 2004 read with Notification No.272012 dated 18.6.2012. The appellants are before me for the following disallowances by the Commissioner (A)
Appeal No.
Period
Service
Amount
ST216482017
April 2014 to June 2014
Submission of STPI certificate
Rs.12,50,810-
Management, Maintenance or Repair Service Rs.47,832-
Management or Business Consultants Services Rs.41,531-
ST216472017
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 softwareITES 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.
4.1 Learned Consultant further submitted that the Commissioner (A) has wrongly rejected the CENVAT credit on Management, Maintenance or Repair Service amounting to Rs.47,832- on account of lack of nexus. He further submitted that this Tribunal in appellants own case for the earlier period vide Final Order No.20050-2005720177 dated 13.1.2017 has held that these services as eligible input services. They relied on the following case laws also
Nature of Services
Case laws
Management, Maintenance or Repair Service
ISMT Ltd. vs. CCE & C 2010-TIOL-27-CESTAT-MUM
Management or Business Consultants Service
Heartland Bangalore Transcription Services (P) Ltd. vs. CST 2011 (21) STR 430 (Tri.-Bang.
Semo Electricals Pvt. Ltd. vs. CCE 2011-TIOL-965-CESTAT-Mum.
Jeans Knit Pvt. Ltd. vs. CCE 2011 (21) STR 460 (Tri.-Bang.)
Castrol India Ltd. vs. CCE 2013 (291) ELT 469 (Tri.-Ahmd.)
Kijiji (India) Pvt. Ltd. vs. CCE 2013 (32) STR 661 (Tri.-Mum.)
CCE vs. MMS Maritime (India) Pvt. Ltd. 2016 (41) sTR 869 (Tri.-Mum.)
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.
7. Accordingly, the appeals are disposed of in above terms.
(Operative portion of the Order was pronounced in Open Court on 02/01/2018)
