Thomson Corporation (International) ... vs Commissioner Of Service Tax ...

[Arising out of Order-in-Appeal No. 157/2009 dated 16/12/2009 passed by the Commissioner of Central Excise, Bangalore] [Arising out of Order-in-Appeal No. 158/2009 dated 16/12/2009 passed by the Commissioner of Central Excise, Bangalore]

For approval and signature:

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? Yes 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

Thomson Corporation (International) Pvt. Ltd. Pinnacle ,#15,, Bahai's Bhavan Road, Bangalore Appellant(s) Versus

Commissioner of Service Tax Bangalore-Service Tax 1st To 5th Floor, TTMC Building, Above BMTC Bus Stand, Domlur Bangalore  560 071 Karnataka Respondent(s)

Appearance:

Shri. Mahesh Jaising, CA For the Appellant

Shri. Ajay Saxena, AR For the Respondent

Date of Hearing: 18/09/2015 Date of Decision: 18/09/2015 CORAM:

HON'BLE SHRI ASHOK KUMAR ARYA, TECHNICAL MEMBER

Final Order Nos. 21938-21939 / 2015

Per: ASHOK KUMAR ARYA

Both the parties have been heard.

2. The matter concerns with the refund claims for the inputs cenvat credit taken in respect of two services exported by the appellant; the services exported are IT services and ITES (IT Enabled Services).

3. The learned CA Mahesh Jaising appearing for the appellant argues that for these two appeals the subject matter is covered by the decisions of the Honble Karnataka High Court in the case of mPortal India Wireless Solutions P. Ltd. Vs. CST, Bangalore [2012 (27) S.T.R. 134 (Kar.)] and CESTAT, Bangalore in the case of Apotex Research Pvt. Ltd. and others [2014-TIOL-1836-CESTAT-BANG.]. The learned CA also referred to this Benchs decision dated 20.10.2010 in their own case stating that the issue of limitation should not come in their way for examining and deciding the refund claims in question.

4. The Honble Karnataka High Court in the above decision has held that an assessee is entitled to refund for the export of software, even if it is a non-taxable item, for the unutilized credit; it held that refund of unutilized credit is admissible to the assessee on furnishing of particulars of the tax paid by them.

5. The learned CA for the appellant argues that they are not only entitled to the refund in case of export of ITES services which were taxable but also for the IT services which were non-taxable during the relevant period in terms of the decisions cited above. He requests that the matter may be remanded back to the department for examining in terms of these judgments.

6. The learned Commissioner (AR), Shri Ajay Saxena appearing for the Revenue fairly agrees that in terms of Honble High Courts decision and the CESTAT, Bangalores decision quoted above the matter may be remanded to the original adjudicating authority.

7. Considering the facts of the case and the decisions quoted above the matter is remanded back to the original adjudicating authority to examine the refund claims of the appellant in their entirety including for the IT services exported though the said services were non-taxable during the relevant period; the issue of limitation is to be examined by the original adjudicating authority as per the provisions of law prevalent during the relevant period. It is also ordered that the original adjudicating authority will decide the appellants claims within ten weeks of receipt of this order by the Revenue.

8. Both the appeals are disposed of in above terms.

(Order pronounced in open court)

(ASHOK KUMAR ARYA) TECHNICAL MEMBER

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