At, Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai
By, THE HONOURABLE MR. JUSTICE P.K. DAS
By, JUDICIAL MEMBER
For the Appellant: S. Ramachandran, Consultant Advocate. For the Respondent: M. Rammohan Rao, DC (AR).
1. A common issue involved in these appeals and therefore all are taken up together for disposal.
2. After hearing both sides at length, I find that the appeals may be decided at the stage of stay petition hearing itself. Accordingly, after disposing of the stay applications, I proceed to dispose of the appeals.
3. Heard both sides and perused the records.
4. The appellants are 100% EOU engaged in providing pre-publishing services namely E Publishing of Books. The appellants are exporting output service namely information technology software service, covered under Section 3(iii) of Export of Service Rules, 2005. They availed input service credits which were used in rendering export of service. The appellant filed refund claims under Rule 5 of CENVAT Credit Rules, 2004 on the amount of input service credit utilized for export of service. The adjudicating authority sanctioned the refund claims under Rule 5 of CENVAT Credit Rules, 2004 r/w Section 11B of the Central Excise Act, 1944 to be paid in cash and a small amount was rejected. Revenue filed appeals before the Commissioner (Appeals). By the impugned order, the Commissioner (Appeals) disposed of the Revenues appeals insofar as refund of service tax on security service, advertisement service, audit fee and software service were allowed and the refund of input service credit for remaining two other items were disallowed. Hence the assessee has filed these appeals before this Tribunal.
5. On perusal of the impugned orders, I find that the Commissioner (Appeals) has disallowed the refund of service tax namely Rent-a-cab service, Telephone service, Maintenance charges, Renting of premises, Consultancy, Food Pass, Software, AMC charges, Data Card. Video Conferences, Outsourcing, Housekeeping, Courier, Ancedent charges, Foreign outsourcing, Profession charges, Web conference and vendor charges on the ground that these activities are not relating to business. I find that the Tribunal by Final Order Nos. 40449 to 40452/2013 dated 6.9.2013, in the appellant’s own case, dismissed the Revenue’s appeals on the ground that Revenue has not placed any material to prove that the above services were not used in relation to output service. In the said order, the Commissioner (Appeals) discussed the use of the services item-wise elaborately. In the present case, the Commissioner (Appeals) merely mentioned the name of the services and observed that the same cannot be stretched to portray as an activity relating to business. In my considered view, the Commissioner (Appeals) cannot disallow the refund claim of the same service without discussing in detail use of services item-wise. The learned consultant on behalf of the appellant submits that they have mentioned the use of the activities item-wise in their refund claim application. Hence, it is appropriate that the Commissioner (Appeals) should examine the use of the services on each of the items before deciding the case.
6. In view of the above discussions, the impugned orders insofar as rejection of refund of service tax pertaining to the services as mentioned therein are set aside and the matters are remanded to the Commissioner (Appeals) to decide afresh after considering the use of the service
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s on each item. The appellants are also directed to produce the details of the use of the service item-wise at the time of hearing. All the appeals are allowed by way of remand. Needless to say that the Commissioner (Appeals) shall give a proper opportunity of hearing before passing the order. The stay applications are also disposed of accordingly.