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    CNS COMNET SOLUTION PVT LTD Vs CCE & ST

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    killertapas
    The appellant appealed orders that denied their refund claim of unutilized service tax credits in their account. The revenue denied the claim on the grounds that the underlying services (rental of cabs) were not "input services" allowing credit. However, the tribunal ruled that since the credits were availed without objection originally, the issue of eligibility could not be raised now in assessing the refund claim. The tribunal set aside the appeal orders and allowed the appellant's refund claim with consequential relief.

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    CNS COMNET SOLUTION PVT LTD Vs CCE & ST

    Uploaded by

    killertapas
    33 views3 pages
    The appellant appealed orders that denied their refund claim of unutilized service tax credits in their account. The revenue denied the claim on the grounds that the underlying services (rental of cabs) were not "input services" allowing credit. However, the tribunal ruled that since the credits were availed without objection originally, the issue of eligibility could not be raised now in assessing the refund claim. The tribunal set aside the appeal orders and allowed the appellant's refund claim with consequential relief.

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    The appellant appealed orders that denied their refund claim of unutilized service tax credits in their account. The revenue denied the claim on the grounds that the underlying services (rental of cabs) were not "input services" allowing credit. However, the tribunal ruled that since the credits were availed without objection originally, the issue of eligibility could not be raised now in assessing the refund claim. The tribunal set aside the appeal orders and allowed the appellant's refund claim with consequential relief.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    33 views3 pages

    CNS COMNET SOLUTION PVT LTD Vs CCE & ST

    Uploaded by

    killertapas
    The appellant appealed orders that denied their refund claim of unutilized service tax credits in their account. The revenue denied the claim on the grounds that the underlying services (rental of cabs) were not "input services" allowing credit. However, the tribunal ruled that since the credits were availed without objection originally, the issue of eligibility could not be raised now in assessing the refund claim. The tribunal set aside the appeal orders and allowed the appellant's refund claim with consequential relief.

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    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    of 3

    2021-TIOL-94-CESTAT-CHD

    IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL


    REGIONAL BENCH, CHANDIGARH
    COURT NO. I

    Service Tax Appeal No. 60001 of 2020

    Arising out of Order-in-Appeal No. 135-CE-CGST-APPEAL-GURUGRAM-SG-2019, Dated: 30.09.2019


    Passed by the Commissioner (Appeals) CGST, Gurgoan

    WITH
    Service Tax Appeal No. 60002 of 2020

    Arising out of Order-in-Appeal No. 133-CE-CGST-APPEAL-GURUGRAM-SG-2019, Dated: 30.09.2019


    Passed by the Commissioner (Appeals) CGST, Gurgoan

    AND
    Service Tax Appeal No. 60003 of 2020

    Arising out of Order-in-Appeal No. 134-CE-CGST-APPEAL-GURUGRAM-SG-2019, Dated: 30.09.2019


    Passed by the Commissioner (Appeals) CGST, Gurgoan

    Date of Hearing: 03.02.2021


    Date of Decision: 03.02.2021

    M/s C N S COMNET SOLUTION PVT LTD


    (433 UDYOG VIHAR PHASE III, GURUGRAM 122016)

    Vs

    COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX


    GURGAON-I, (PLOT NO. 36-37, SECTOR 32
    NEAR MEDANTA HOSPITAL, GURGAON 122001)

    Appellant Rep by: Mr Sundeep Chadha, Consultant


    Respondent Rep by: Mr Vijay Gupta, AR

    CORAM: Ashok Jindal, Member (J)

    2021-TIOL-94-CESTAT-Chandigarh-Service Tax (Finance Act 1994) Page 1 of 3


    ST -
    The assessee is in appeal against impugned orders wherein their refund claim lying unutilized in their cenvat credit account was denied to the
    assessee on the ground that the service on which they are taken the cenvat credit is not input service in terms of Rule 2(l) of Cenvat Credit
    Rules, 2004 - They had taken cenvat credit on rent a cab service where the service provider has charged service tax from them and for the
    remaining invoices, they have paid service tax under reverse charge mechanism and availed the cenvat credit of the same - At the time of
    availement of cenvat credit, it was never disputed that the assessee is not entitled to cenvat credit on the service in question - The dispute in
    the matter is of sanction of refund claim of unutilized cenvat credit in their account not the issue of availment of cenvat credit on the input
    service, therefore, the Revenue has fell in error and wants to raise the issue of availment of cenvat credit while entertaining the refund claim -
    In case, assessee had not filed the refund claim, they were entitled of cenvat credit which was not objected at the time of availment - In that
    circumstance, at the time of entertaining refund claim, the issue of admissibility of cenvat credit cannot be raised: CESTAT

    Appeals allowed

    FINAL ORDER NOS. 60489-60491/2021

    Per: Ashok Jindal:

    The appellant is in appeal against the impugned orders wherein their refund claim lying unutilized in their cenvat credit account was denied to
    the appellant on the ground that the service on which they are taken the cenvat credit is not input service in terms of Rule 2(l) of the Cenvat
    Credit Rules, 2004.

    2. The facts of the case are that the appellant is a provider of output services. While providing these services, the appellant requires certain
    services to be availed from outside on which (being an EOU) the appellant is required to pay service tax under reverse charge mechanism.
    The appellant paid service tax under reverse charge mechanism and took the cenvat credit of the same in their cenvat credit account.
    Periodically the appellant filed the refund claims under Notification No. 27/2012 dt. 18.06.2012 for the cenvat credit lying unutilized in their
    cenvat credit account. The cenvat credit was sanctioned partly but the cenvat credit pertains to 'rent a cab service' was denied holding that the
    vehicles which have taken on rent by the appellant are not registered in the name of service provider, therefore, they are not entitled to take
    the cenvat credit on the same in terms of the Rule 2(l) of the Cenvat Credit Rules, 2004 as these are not capital goods, therefore the refund
    claim was denied. Against those orders, the appellant is before me.

    3. The ld. Consultant for the appellant submits that as the appellant has paid service tax under reverse charge mechanism, therefore, they
    have taken the cenvat credit and at the time of payment of service tax on this service, it was not objected by the Revenue that this is not an
    input service for you, therefore, they are not required to pay service tax. As they have paid service tax, therefore, they are entitled to take the
    cenvat credit of the same. It was further submitted that the audit was conducted in the year 2019 and a show cause notice was issued to that
    effect to the appellant but without any dispute of availment of the cenvat credit on 'rent a cab service'. Therefore, as at the time of availemnt of
    the cenvat credit, it was not disputed, therefore, while claiming refund claim, it cannot be disputed. Therefore, the impugned orders are
    required to be set aside.

    4. On the other hand, the ld. A.R. for the Revenue submits that at this time we are dealing with the issue of availment of the cenvat credit by
    the appellant on the service in question i.e. rent a cab service and admittedly this is not an input service in terms of Rule 2(l) of the Cenvat
    Credit Rules, 2004 as the vehicle which are not registered in the name of service provider are not capital goods, therefore, their refund claim
    was rightly rejected holding that these are not input service, therefore, they are not entitled to take the cenvat credit, hence, the refund claim is
    not maintainable. He further submits that the audit conducted in 2019 have no bearing for availment of the cenvat credit during the period in
    question.

    5. Heard the parties and considered the submissions.

    2021-TIOL-94-CESTAT-Chandigarh-Service Tax (Finance Act 1994) Page 2 of 3


    6. It is an admitted fact on record that the appellant has taken the cenvat credit on rent a cab service where the service provider has charged
    the service tax from them and for the remaining invoices, they have paid the service tax under reverse charge mechanism and availed the
    cenvat credit of the same. It is also a fact on record that at the time of availement of the cenvat credit, it was never disputed that the appellant
    is not entitled to the cenvat credit on the service in question. The dispute in the matter is of sanction of refund claim of unutilized cenvat credit
    in their account not the issue of availment of the cenvat credit on the input service, therefore, the Revenue has fell in error and wants to raise
    the issue of availment of the cenvat credit while entertaining the refund claim. In case, the appellant had not filed the refund claim, the
    appellant was entitled of the cenvat credit which was not objected at the time of availment. In that circumstance, I hold that at the time of
    entertaining the refund claim, the issue of admissibility of the cenvat credit cannot be raised. Therefore, I do not find any merits in the
    impugned orders, the same are set aside.

    7. In result, the appeals are allowed with consequential relief.

    (Dictated and pronounced in the open court)

    (DISCLAIMER
    : Though all efforts have been made to reproduce the order correctly but the access and circulation is subject to the condition that

    Taxindiaonline are not responsible/liable for any loss or damage caused to anyone due to any mistake/error/omissions.)

    2021-TIOL-94-CESTAT-Chandigarh-Service Tax (Finance Act 1994) Page 3 of 3

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