Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

PJ/Case Law/2014-15/2333

Value of exempted service will also be added in export turnover for getting unutilised credit refund.

Case:-QUINTILES TECHNOLOGIES (INDIA) PVT. LTD. V/S COMMR. OF S.T., AHMEDABAD

Citation:- 2014 (34) S.T.R. 753 (Tri. – Ahmd.)

Brief facts:- These appeals were filed by the appellant against six order-in-appeal Nos. 49/2013(STC)/SKS/Commr(A)/Ahd,53/2013(STC)/SK5/Commr(A)/Ahd,54/2013(STC)/SKS/Commr(A)/Ahd,56/2013(STC)/SKS/Commr(A)/Ahd all dated 28-3-2013 and OIA Nos. 130/2012 STC)/K.ANPAZHAKAN/Commr(A)/Ahd and   132/2012(STC)/K.ANPAZHAKAN/ Commr.(A)/ Ahd both dated 20-4-2013. Issue involved in all the six appeals were the same, therefore, the same were taken up together for disposal in the common order.

Appellant’s contention:- Shri Prakash Shah (Advocate) appearing on behalf of the appellant argued that appellant is engaged in providing I.T. enable services and have a centralised registration at Ahmedabad for providing Business Auxiliary Services. Appellant has been periodically filling refund claims of unutilised Cenvat credit under rule 5 of the Central Excise Rules, 2004 read with the provisions of Notification No. 5/2008-C.E. (N.T.), dated 14-3-2006. He argued that revenue is wrongly calculating the refund claim amount as per the formula given in rule 5(1) of the Cenvat Credit Rules, 2004. It was contested that value of Technical Testing and Analysis Services are also required to be added both to the ‘Export turnover’ and the ‘total turnover’ defined in explanation to clause 5 of Notification No. 7/2010-C.E. (N.T.), dated 27-7-2010. It was said that sum total of all the services exported, whether dutiable or exempted, should be added to both the Export Turnover and Total Turnover. As appellant was not providing any services to the DTA and all the services were exported therefore the entire Cenvat credit of services taken and lying unutilised by the appellant, were required to be paid to the appellant and no Cenvat credit of any services used in exporting exempted services was taken by the appellant. He also argued that in view of CESTAT, Mumbai order in the case of Zenta Pvt. Ltd. v. CCE, Mumbai- V in appeal No. ST/455/2011[2012(27) S.T.R. 519 (Tri.) = 2012 (284) E.L.T. 45 (Tri.)] full refund of service tax credit was available to the appellant.     

Respondent’s contention:- Shri Manoj Kutty (AR) appearing on behalf of the revenue argued that exempted services exported should be included only in the total turnover and not to be added to the export turnover as no service tax credit is admissible for exempted services. Learned AR accordingly defended the order passed by the first appellate authority.

Reasoning of judgement:-  The issue involved in the proceedings was only with respect to calculation of refund as per formula given in Rule 5(1) of the Cenvat Credit Rules,2004. The prescribed formula is reproduced below:-

Refund amount= (export turnover of goods + export turnover of services) *net Cenvat credit
                                                                Total turnover

Further clauses (D) and(E) of rule 5(1) define the export turnover of services and total turnover as follow:-

“(D) “Export turnover of the services” means the value of the export service calculated in the following manner, namely:-

Export turnover of services= payments received during the relevant period for export services + export services whose provision has been completed for which payment had been received in advance in any period prior to the relevant period – advances received for export services for which the provision of service has not been completed during the relevant period;

(E) “Total turnover” means sum total of the value of –

(a) all excisable goods cleared during the relevant period including exempted goods, dutiable goods and excisable goods exported;

(b) export turnover of services determined in terms of clause (D) of sub rule (1) above and the value of all other services, during the relevant period; and

(c) all inputs removed as such under sub rule (5) of rule 3 against an invoice, during the period for which the claim is filed.”
 

It was the case of the appellant that 100% of the credit with respect to services exported should be refundable under rule 5 of the Cenvat Credit Rules, 2004. There is no evidence on record that appellant has taken any input service tax with respect to exempted services exported out of India. As per the definition of ‘Export output of services’, given in clause (D) of rule 5(1) of the Cenvat Credit Rules, 2004, no distinction should be made with respect to payment received from export of services. Further the logic of giving cash refund of taxes used, in relation to export of goods/services under rule 5 of the Cenvat Credit Rules, 2004, is to have ‘Zero rated’ exports. In the case of the appellant, no exempted service was provided in the domestic tariff area. Therefore, even exempted export services should be added to the export turnover of services and all the unutilised service tax credit pertaining to exported service will be admissible as refund under rule 5 of the Cenvat Credit Rules, 2004. This view is also fortified by view taken by CESTAT, Mumbai in the case of Zenta Pvt. Ltd. v. CCE, Mumbai in appeal no. ST /455/2011[2012(27)S.T.R. 519(Tri.)= 2012 (284)E.L.T. 45(Tri.)] which was relied upon by the appellant.

In view of the above observation, appeals filed by the appellants are allowed with consequential relief, if any.                              
       
Decision:-  appeal allowed.

Comment:-  This decision underlines that definition of export services does not exclude the exempted services. If the exempted services are exported then the value of this will also be included in calculating export services. Consequently, the refund of unutilised credit will also be allowed on this export services also.

Prepared by Monika Tak.
 

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com