Misys Software Solutions (India) Pvt ... vs Commissioner Of Service Tax ...

[Arising out of Order-in-Appeal No. 101 - 103-2010 dated 04/03/2010 passed by CCE(Appeals-II), Bangalore]

For approval and signature:

HON'BLE MRS. ARCHANA WADHWA, JUDICIAL MEMBER 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?

MISYS SOFTWARE SOLUTIONS (INDIA) PVT LTD EAGLE RIDGE, EMBASSY GOLF LINKS BUSINESS PARK OFF INTERMEDIATE RING ROAD, BANGALORE 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 B.G.CHIDANANDA URS, Advocate #520, AMRUTH NIVAS, 7TH MAIN, 13TH CROSS, RMV 11 STAGE, DOLLARS COLONY, BANGALORE -560094 For the Appellant

Shri A.K. Nigam, Addl. Commissioner(AR) For the Respondent

Date of Hearing: 23/03/2015

Date of Decision: 23/03/2015

CORAM:

HON'BLE MRS. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

Final Order No. 20836-20838 / 2015

Per : B.S.V. MURTHY

The three appeals arise out of a common order and therefore all the appeals are taken together and a common order is passed.

2. The issue involved is eligibility for refund of accumulated CENVAT credit under Notification No.5/2006-CE(NT) read with Rule 5 of CENVAT Credit Rules, 2004. The period for which refund has been claimed is November 2007 to March 2008, April 2008 and May 2008. The total amount of refund is Rs.20 lakhs (approx.).

3. The refund claims have been rejected on the following two grounds:

a. the output service of information technology and information technology support service was not taxable during the relevant time and

b. the service was rendered to clients in India and therefore the transaction does not constitute export of service.

4. The learned counsel relying upon the decision in the case of mPortal India Wireless Solutions Pvt. Ltd. Vs. Asst. Commissioner [2013(30) STR 305 (Tri.)] and upheld by the Honble High Court of Karnataka submits that even if the output service is not taxable, the refund cannot be denied. He also submits that this Tribunal in the Interim Order No.79 to 152/2014 dt. 18/09/2014 in the case of Apotex Research Pvt. Ltd. & others, has followed this decision and he draws our attention to paragraph 6.12 of the order. We find the submissions to be correct. As regards the second ground, he submits that paragraph 6.5 of the order of this Tribunal covers the issue.

5. We find that this issue has been dealt with in para 6.5 of the Interim Order in the case of Apotex Research Pvt. Ltd. as submitted. Therefore the appeals have to be allowed on merits on both the issues. Accordingly the impugned orders are set aside and the matters are remanded to the original adjudicating authority to consider the refund claims in accordance with the observations hereinabove.

(Order pronounced in court)

B.S.V.MURTHY TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER

Raja.

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