2024-VIL-300-CESTAT-CHD-ST
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SERVICE TAX CESTAT Cases

Service Tax - Export of services – Rendering of ITSS services or not - Refund of Cenvat Credit – Denial of refund of CENVAT Credit on the ground that ITSS Services rendered by the appellant are not in terms of the agreement and hence, do not qualify to be considered as export of service - whether the appellants are eligible refund on the ITSS Services rendered to M/s Agilent Technologies, Singapore – HELD – The ITSS Services became taxable w.e.f. 16.05.2008. The appellants have entered into an agreement titled “Research & Development Services Agreement” on 01.08.2004 with M/s Agilent Technologies, Singapore; it was amended and restated w.e.f November 1, 2008 - the certificate issued by M/s Agilent Technologies, Singapore was placed on record to claim that ITSS Services were rendered - It is the case of the Department that the proviso to Rule 3(1)(iii) of Exports of Service Rules 2005 is not satisfied as no order for provision of ITSS Services was in place during the relevant period - On going through the agreement, one gets understanding that the same are not in the field of ITSS. An addendum of a later date cannot be construed to be an order valid during the relevant period. Therefore, there was no specific order placed by M/s Agilent Technologies, Singapore, on the appellant, for providing ITSS Services during the relevant period - the argument of the appellants that development of Software Services rendered is linked to the R & D Agreement is not acceptable - during the relevant period, the appellants are not entitled to refund of CENVAT credit on services utilized for ITSS Services, they would be eligible for the refund of CENVAT credit on services utilized for other services, if otherwise, applicable. For this reason, matter requires to go back to the Original Authority - The appellants have not fulfilled the conditions of proviso to Rule 3(1)(iii)of Export of Service Rules, 2005 in respect of claim of export ITSS Services, in the impugned period. However, refund is admissible for the reason that no demand has been raised on the appellant for provision of these services held not eligible to be considered as export – appeal is allowed by remand - Revenue seeks to deny credit on the ground that their supplier has paid service tax on the generators supplied under the head “Supply of Tangible Goods Services” before the same became taxable w.e.f. 16.05.2008 – HELD – there is no dispute regarding the fact of duty being paid on the generator - the service tax being paid, credit cannot be denied – Ld. Authorized Representative for the Department submits that all the cases cited by the appellant are in the realm of Central Excise and therefore, not applicable to the issue of service tax. Not inclined to accept this proposition - The basic principle of CENVAT credit being same under Central Excise & Service Tax regime, any differentiation in this regard would be artificial - The appellants are eligible to avail CENVAT credit on the service tax paid on the generator provided to them by their supplier and are eligible for refund of the same - Rejection of refund for the reason that the ST-3 Returns do not tally with the CENVAT credit Register – HELD - refund cannot be rejected for the reason that there is a discrepancy between the CENVAT record and ST-3 Returns - The appellants are eligible for refund of credit even if there is a mis-match between CENVAT credit records and ST-3 Returns, provided the appellants demonstrate that such services have been procured on payment of tax and are used in the provision of services exported - the issue requires to travel back to the Original Authority for a re-consideration.
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