CAPGEMINI INDIA PVT. LTD. Vs. COMMISSIONER OF SERVICE TAX
LAWS(CE)-2015-4-21
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on April 09,2015

Capgemini India Pvt. Ltd. Appellant
VERSUS
COMMISSIONER OF SERVICE TAX Respondents

JUDGEMENT

M.V.RAVINDRAN,MEMBER (J) - (1.)THIS appeal is directed against Order -in -Appeal No. YDB/358/M -II/2010 dated 07.06.2010.
Relevant facts that arise for considerations are appellant is registered with the authorities as provider of service under Service Tax category of Business Auxiliary Services (BAS in short) and Information Technology Software Services (ITSS in short). The appellant is also registered as software export firm and they export their services mostly parent or to their sister units situated abroad. For the month of July 2008, appellant filed refund a claim of an amount which was lying unutilized in their CENVAT Credit account, claiming it to be the services which were received by them for rendering output services viz. BAS and ITSS. Adjudicating authority after granting an opportunity of personal hearing to the appellant and considering their reply to the show -cause notice, came to a conclusion that the export invoice under which the services are claimed to be exported is not in conformity with the provisions of Rule 4A of Cenvat Credit Rules, 2004 and hence it is not possible to ascertain the exact classification of the services which is said to be exported by them during the period under consideration and rejected the refund claim. Aggrieved by such order, an appeal was preferred before the first appellate authority. The first appellate authority after following due process of law, after considering the provisions of Export of Service Rules, 2005, Cenvat Credit Rules, 2004 and the definition of BAS and ITSS, held that the appellant is not able to co -relate the services exported by them and hence the impugned order before him was held as correct.

(2.)1 Learned Counsel would take us through the case records and submit that the invoices which are raised by the appellant are on their own parent or sister concern situated outside the country. He would further take us through one sample invoice which was issued during the relevant period. He would draw our attention to the invoice specifically to point out that the invoice is for the job that has been allotted to them by their sister concern was in respect of business entity called ALCATEL. He would submit that though the bill is raised as professional fees for the month of June 2008, the said bill also indicates a project code and the said can be verified from various documents. He would also draw our attention to the annexure which are enclosed with the invoice and submit that all these employees had traveled abroad for completing the work which has been given to them by their parent/sister concern. It is his submission that revenue authorities have not disputed that the appellant had exported services and there is no dispute as to the fact that foreign exchange remittances are received against the bills which are raised.
3.2 He would then draw our attention to the definition of BAS and ITSS as also the provisions of Rule 4A of the Service Tax Rules, 2004 and Rule 5 of Cenvat Credit Rules, 2004. He would submit that except for the findings that the invoices which are raised by the appellant for export of services do not match with the descriptions of the export services viz. BAS and ITSS, no other findings have been recorded by the lower authorities, which would indicate that all other submissions are accepted by the authorities.

3.3 It is also his submission that the appellant is registered with the Government authorities as the unit is falling under Hardware Technology Park and Software Technology Park which are predominantly created for export of the services.

3.4 He would also submit that it is bounden duty of the lower authorities to classify the product/services. If they have any doubt, they could have called for the documents and come to a conclusion. He would draw our attention to order -in -original No. AC/R -140/Div -V/DPS/09 -10 dated 28.01.2010 which was in respect of the refund claim filed by them for the unutilized credit in the month of August 2008. He would submit that the said claim has been allowed and they have received the refund cheque also. He would submit that the issue involved in the current case before the Tribunal, the same issue was before the adjudicating authority in order -in -original dated 28.01.2010. He would submit that the authorities had called for the records from the appellant and after considering the entire issue allowed the refund claim. He would submit that revenue is not in appeal against such an order.

(3.)DEPARTMENTAL Representative on the other hand, would support the impugned order on the ground that the appellant has failed to demonstrate that they had exported BAS and ITSS services in order to claim the refund of the amount of CENVAT Credit lying unutilized during the relevant period.
We have considered the submissions made at length by both sides and perused the records.

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