Dell India Pvt Ltd vs Commissioner Of Service Tax ...

[Arising out of Order-in-Appeal No. 12-2011 dated 30/03/2011 passed by CCE&ST(Appeals), Bangalore]

For approval and signature:

HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

DELL INDIA PVT LTD DIVYASHREE GREENS, GROUND FLOOR, NO.12/1, 12/2A, 13/1A, CHALLAGHATTA VILLAGE, VARTUR HOBLI, BANGALORE SOUTH, BANGALORE 560 071 Appellant(s)

Versus

Commissioner of Service Tax BANGALORE-SERVICE TAX NULL 1ST TO 5TH FLOOR, TTMC BUILDING,above BMTC BUS STAND,DOMLUR BANGALORE, - 560071 KARNATAKA Respondent(s)

Appearance:

Shri L.S. Karthikeyan, Advocate For the Appellant Dr. A.K. Nigam, Addl. Commissioner(AR) For the respondent

Date of Hearing: 10/03/2015

Date of Decision: 10/03/2015

CORAM:

HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

Final Order No. 20664-20665 / 2015

Per : B.S.V. MURTHY

In both the appeals, issues involved are common and therefore both the appeals are taken together and a common order is passed.

2. Appellant is an SEZ unit and they filed refund claims under Notification No.9/2009-ST dt. 03/03/2009 as amended by Notification No.15/2009-ST dt. 20/05/2009. Both the refund claims have been made to claim the refund of service tax paid on input services received by them. The refund claims have been rejected on 2 grounds. The two grounds are that certain services were not used in authorised operations and certain services were wholly utilised within the SEZ.

3. The learned counsel on behalf of the appellants submits that it is not the case of the Revenue that either the authorised operations or the input services are not specified in the approval granted by the Committee. The case of the Revenue is that there is no nexus in respect of certain services between the input services and the manufactured goods. As regards second issue, he submits that the appellant could have obtained the input service without payment of service tax but it does not mean that they cannot take refund of the tax paid by them on such services. He relies on the decision of the Tribunal in the case of Tata Consultancy Services Ltd. Vs. CCE(LTU), Mumbai [2013(29) STR 393 (Tri. Mumbai)] in support of his submissions.

4. Learned AR fairly agrees that the issues are covered by the decision of the Tribunal.

5. I have considered the submissions. Both the issues had come up before the Tribunal in the case of TCS in Bombay and the Tribunal had taken the view that appellant is eligible for refund. As regards utilisation in authorised operations, the Tribunal had observed that the Committee which gives approval has a representative of the Revenue also as a Member and having approved being part of the Committee, subsequently Revenue cannot take a stand that input services specified and approved have no nexus or they have not been used in authorised operations and to deny the refund. As regards the payment of service tax in respect of services utilised entirely within SEZ, the Tribunal took the view that even though the service receiver could have obtained the services without payment of tax, it does not bar him obtaining the services on payment of tax and claiming refund. Since both the issues are covered by the decision of the Tribunal cited by the learned counsel, the appeals are allowed with consequential relief, if any, to the appellant.

(Order pronounced and dictated in open court)

B.S.V.MURTHY TECHNICAL MEMBER

Raja.

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