Microsoft India (R&D) Pvt Ltd vs Commissioner Of Service Tax ...
- CitationAppeal No. 459-2011 dated 26/12/2011 passed by Commissioner of Central Excise (Appeals-II)
Ratio decidendi
The rule this decision rests on
The Revenue's appeal is rejected because the question whether the assessee's services are export of services is settled in the assessee's own favour by a prior Tribunal decision in the assessee's own case, which the Tribunal follows in the same case. Where the Commissioner (Appeals) has rejected a refund claim for part of the services on the ground that they lack nexus with the exported output services, and has remanded the matter for quantification only, the Tribunal does not disturb that finding but makes the remand an open remand, directing the original adjudicating authority to reconsider the nexus issue in light of precedent decisions and of the assessee's contention that refunds were subsequently granted for the same services.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No. 459-2011 dated 26/12/2011 passed by Commissioner of Central Excise (Appeals-II) Bangalore]
For approval and signature:
HON'BLE SMT ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK KUMAR ARYA, 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? No 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? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes
MICROSOFT INDIA (R&D) PVT LTD GLOBAL TECHNICAL SUPPORT CENTER, LEVEL 2 & 3, BLOCK-B, LEVEL 2-6, BLOCK E, EMBASSY GOLF LINKS BUSINESS PARK, OFF INTERMEDIATE RING ROAD, BANGALORE 560 071 Appellant(s)
CST BANGALORE NO. 16/1, S.P. COMPLEX, LALBAGH ROAD, Appellant(s)
Versus
Commissioner of Service Tax BANGALORE-SERVICE TAX 1ST TO 5TH FLOOR, TTMC BUILDING, above BMTC BUS STAND,DOMLUR BANGALORE, - 560071 KARNATAKA Respondent(s)
MICROSOFT INDIA (R& D) PVT LTD 1ST TO 5TH FLOOR, TTMC BUILDING, above BMTC BUS STAND,DOMLUR BANGALORE, - 560071 KARNATAKA Respondent(s)
Appearance:
Mr. Vivek Pacharia, Adv For the Assessee Mr. Mohammad Yusuf, A.R. For the Respondent
Date of Hearing: 08/09/2015
Date of Decision: 08/09/2015
CORAM:
HON'BLE SMT ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK KUMAR ARYA, TECHNICAL MEMBER
Final Order No. 21880-21881 / 2015
Per : ARCHANA WADHWA
Both the appeals one filed by the assessee and the other by the Revenue are being disposed of by a common order as they arise out of the same impugned order passed by the lower authorities. The assessee is a 100% EOU and registered with the service tax department under the category of business auxiliary services. They claimed refund of service tax in terms of the provisions of Rule 5 of CENVAT Credit Rules. The said refund claim was rejected by the original adjudicating authority on the sole ground that the appellant cannot be held to be exporting the services and thus not entitled to the refund claim. On an appeal, Commissioner (Appeals) held in favour of the assessee on the said legal issue and further took into consideration the various services. He disallowed the refund in respect of certain services laying down that the same have no nexus with the output services i.e. the exported services. Both sides being aggrieved with the said order have filed the present appeals.
2. As regards the Revenues appeal, we find that an identical issue stands settled in favour of the assessee in their own case. In the case of Microsoft India (R&D) Pvt Ltd Vs CST Bangalore, the Tribunal vide Final Order No. 21742/2014 dated 24/09/2014 has held that the services provided by the appellant are export of services. As such we find that the said issue involved in the Revenues appeal is finally settled in the assessees own case. By following the same we reject the appeal filed by the Revenue.
3. As regards the claim of refund of duty paid on some of the services, Commissioner(Appeals) has held that the same has no nexus with the final output services. He has only remanded the matter to the original adjudicating authority for quantification of such denied refund claim.
4. Learned advocate appearing for the assessee submits that in their own case subsequently for different periods, the lower authorities have held in their favour and have sanctioned refund claims. Otherwise, we find that the issue stands decided by various decisions of the Tribunal as also by various High Courts. Inasmuch as the matter stands remanded by the Commissioner (Appeals) to the original adjudicating authority for the limited purpose of quantification, we make the remand as an open remand. The original adjudicating authority would reconsider the issue of nexus on the basis of the precedent decisions as also by taking into consideration the appellants contention that they have been subsequently granted refund in respect of the very same services. The appellant is at liberty to raise the issue before the original adjudicating authority. Accordingly, asessees appeal is disposed in above terms.
(Order pronounced in open court)
ASHOK KUMAR ARYA TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER
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