M/S. Adobe Systems India Pvt. Ltd vs Commissioner Of Central Excise

[Arising out of Order-In-Appeal No. NIO/EXCUS/000/Appl/25/14 02- dated 30.01.2014 and . NIO/EXCUS/000/Appl/99/14 02- dated 15.05.2014 passed by Commissioner of Customs & Central Excise, Service Tax (Appeals), NOIDA]

For approval and signature:

Honble Mr Ashok Jindal, Member (Judicial)

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?

M/s. Adobe Systems India Pvt. Ltd. Appellants

Vs.

Commissioner of Central Excise Respondent

& ST, NOIDA

Appearance:

Shri Kapil Vaish, Advocate for the Appellants

Shri V P Batra and Shri A K Dhawan, AR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 3.2.2015

FINAL ORDER NOS. A/503520503533/2015-ST(SM)

Per Ashok Jindal :

The appellant is in appeal against the impugned order rejecting their refund claim under Rule 5 of the Cenvat Credit Rules, 2004 on the premise that inputs service credit availed by them does not confirm under Rule 2(1) of the Cenvat Credit Rules, 2004.

2. Brief facts of the case are that appellant is providing output service namely Software Development Products and promotional activities of their foreign clients under the activity of business auxiliary services. As whole of the services are being exported by the appellant, therefore input services credit got accumulated in Cenvat Credit account, and therefore, they filed refund claim under Rule 5 of the Cenvat Credit Rules, 2004 for the credit lying unutilized in their Cenvat Credit account. The refund claim was sought to be rejected on the premise that the input service namely Event Management availed by the appellant does not fall under the category of input service as per Rule 2(l) of the Cenvat Credit Rules. Part of the refund claim was allowed but balance of the refund claim was disallowed on the premise that some of the services availed does not fall under 2(l) of the Cenvat Credit Rules. Therefore, appellant is before me by way of these two appeals.

3. Learned Counsel for the appellant submits that under Rule 5 of the Cenvat Credit Rules, 2004 appellant is entitled to claim refund of to unutilized Cenvat Credit lying in their Cenvat Credit account. Therefore, a show cause notice was not required to be issued for denying refund claim as they have correctly taken Cenvat Credit under Rule (3) of the Cenvat Credit Rules, 2004. If same was required to be denied then the show cause notice was required to be issued under rule 14 of the Cenvat Credit Rules, 2004 to deny availed inadmissible Cenvat Credit but same has not been done. Therefore, Cenvat Credit availed by them is correct and refund claim cannot be denied. On merits, he submits that services which were availed by them are exclusively used for promotion of the product of their foreign client by organizing events and promotional activities where they have hotel accommodation etc. and made some event for selling of their product of foreign clients. These services does not fall exclusive clause of 2(l) tof CC Rules, 2004. Therefore, refund claim cannot be denied to them by holding that these services does not fall under Rule 2(l) of the Cenvat Credit Rules, 2004.

4. On the other hand, learned AR reiterate the findings of learned Commissioner (Appeals) and submits that these services have no relation to the export done by the appellant and therefore, they are not entitled for refund of accumulated Cenvat Credit .

5. Heard the parties. Considered the submissions.

6. In this case, the refund claim sought to be denied on the premise that input service credit availed by the appellant does not fall under Rule 2(l) of Cenvat Credit Rules, 2004. As the appellant is an exporter of service and all the services have been availed by them in their activity of export of service the Cenvat Credit lying in their account unutilized. It is not the case that the appellant has availed inadmissible Cenvat credit. The services availed by the appellant also do not fall under the exclusive clause of 2(l) of Cenvat Credit Rules, 2004. In these circumstances, I hold that appellant is entitled for refund claim as claimed by them on merits as the services have been availed by the appellant for export of services. Therefore, I set aside the impugned order and allow the appeals with consequential relief.

(dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

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