Research › Search › Judgment

Bombay High Court · body

2018 DIGILAW 422 (BOM)

Commissioner Of S. t. , Mumbai-iv v. J. P. Morgan Services Pvt. Ltd.

2018-02-12

BHARATI H.DANGRE, S.C.DHARMADHIKARI

body2018
ORDER S.C. Dharmadhikari, J. - We are of the opinion that we should not waste our time when the questions proposed by the Revenue stand answered against the Revenue and in favour of the assessee by the authoritative pronouncement of this Court in the case of Commissioner of Central Excise v. Ultratech Cement Ltd. - 2010 (20) S.T.R. 577 (Bom.) and which follows and applies the relevant and admissible tests. 2. In each of these appeals, Revenue wants this Court to sit in judgment over the conclusion which the Tribunal has reached by not attacking it as vitiated by error of law apparent on the face of record or perversity, but by an approach completely shocks us. The Revenue and its officials are now proceeding on the basis as if they are going about obliging assessees when they grant the benefit under the statute. 3. If these services styled as "Input Services" and 21 in number in the first matter have been found to be having a direct co-relation or nexus with the service that is exported, then, we do not see why the Tribunal''s order should irritate and agitate the Revenue officials to such an extent as compelling them to bring appeals after appeals. 4. The Tribunal has not done anything, but to apply the test and which are already evolved. 5. In the first case which is argued before us, it is stated that M/s. J.P. Morgan Services Pvt. Ltd. the assessee before us was compelled to go to the Tribunal because it stated that it is engaged in providing taxable services in the category of banking and other financial services, business auxiliary services, business support services and management, maintenance or repair services. They had obtained Centralized Service Tax Registration dated 5th October, 2006. They also provided non-taxable services in the nature of software development. During the period October, 2007 to March, 2008, they had exported the above output services, and for such services they availed and utilized the input services which are set out at page Nos. 3 and 4 of the Appeal paper book. 6. It is stated that the Cenvat credit was utilized to pay the tax liabilities on taxable services where export was not claimed and balance Cenvat credit claimed as refund under Rule 5 of the Cenvat Credit Rules, 2004 read with a notification dated 14th March, 2006. 3 and 4 of the Appeal paper book. 6. It is stated that the Cenvat credit was utilized to pay the tax liabilities on taxable services where export was not claimed and balance Cenvat credit claimed as refund under Rule 5 of the Cenvat Credit Rules, 2004 read with a notification dated 14th March, 2006. The two refund claims for the period October, 2007 to December, 2007 were filed on 29th September, 2008 in the sum of Rs. 3,56,21,030/- and for the period January, 2008 to March, 2008 on the very day for a sum of Rs. 6,90,89,258/-. 7. The show cause notice was issued proposing to reject this refund. The Order-in-Original dated 4th December, 2009 sanctioned part of the refund claims and rejected claims to the extent of Rs. 3,24,12,261/- and Rs. 2,73,21,073/-. 8. The rejection was on the ground that there were 21 services which were held to be not used in providing output services, and hence not classifiable as input service under Rule 2(l) of the Cenvat Credit Rules. The other reason was that Cenvat credit was availed on the input services but against input invoice which pertains to the period prior to registration. 9. Aggrieved by not this order, the Tribunal was approached in further appellate jurisdiction by the Revenue, because the Order-in-Original stood corrected by an order-in-appeal dated 10th December, 2012. 10. The Tribunal noted the arguments of both sides and found from the record that the Revenue was objecting to the admissibility of service tax credit in respect of advertising services which are used in terms of manpower recruitment services, transport service which is used for transportation of employees and supply of food and beverage services to the extent that part of the expenditure is met by the employees themselves. 11. On the other hand, the assessee took the Tribunal through the details of each of the 21 services, stating that either they are covered by the definition of "input services" or covered by the phrase "activities resulting to business" in the same clause. 12. Thus, the attention of the Tribunal was invited to the statutory provisions, their understanding of the Revenue officials and as reflected in the notification, but importantly the interpretation of all this by the Hon''ble Supreme Court and this Court. 12. Thus, the attention of the Tribunal was invited to the statutory provisions, their understanding of the Revenue officials and as reflected in the notification, but importantly the interpretation of all this by the Hon''ble Supreme Court and this Court. The Tribunal recorded a concession of the assessee that input credit in respect of supply of food will not be admissible to the extent the employees pay for the same. 13. After the Tribunal noted these contentions and found out that all that it had to do was to decide whether the 21 services can be brought within the purview of the law and particularly as input services used in providing output service which is exported without payment of service tax. 14. After extracting the statutory definition, the amendment brought to the statute, the Tribunal noted that the scope of admissibility of input services is now broadened to include input services used for providing output services. The Tribunal found that the appellate authority had rightly concluded that the input services are used for providing output services. The definition was referred and a factual finding is recorded viz. that all input services used for modernization, renovation or repair to the office premises are also covered. Even the advertising service which was questioned was also held to be an input which would qualify as an input service and used for providing output service. The Tribunal then noted that wherever the employees have contributed to the supply of food service, to that extent, the employer assessee before it has already conceded that it is not covered within the definition. Then, the Tribunal applied the test and which is purely legal test emerging from an authoritative pronouncement of this Court in the case of Commissioner of Central Excise v. Ultratech Cement Ltd. (supra). Pertinently, Ultratech referred to the judgment of the Hon''ble Supreme Court in the case of Maruti Suzuki Ltd. v. Commissioner of Central Excise - 2009 (240) E.L.T. 641 (S.C.) . 15. With all these pronouncements, we wonder as to why Revenue brings appeals after appeals to this Court, and gets them routinely dismissed. The volume does not impress us and merely because 21 services are in issue means nothing to us. 15. With all these pronouncements, we wonder as to why Revenue brings appeals after appeals to this Court, and gets them routinely dismissed. The volume does not impress us and merely because 21 services are in issue means nothing to us. So long as the Tribunal''s order is within the parameters of law, and cannot be termed as perverse or shocking, the judicial conscience of this Court otherwise, we do not interfere therewith even if other view is possible. 16. The Tribunal found that the Revenue was so desperate in questioning the order of the First Appellate Authority that it tried to raise a new ground for the first time and entirely based on facts. That was not a ground made out in the show cause notice or from the adjudication order. Therefore, that point in the appeal was rightly discarded. 17. In such circumstances and when the assessee has obtained a registration and the registration was granted in 2008, was also not a factor to deny the refund. 18. Pertinently, this part of the Tribunal''s order is not questioned before us. 19. Once on merits of the services rendered and whether they qualify for the exemption or refund, is the issue involved, then, we find that the same is properly and rightly considered by applying the correct and relevant test. The services have been scrutinized in the backdrop of these very principles. Then, the order under appeal can neither be termed as vitiated in law or perverse, warranting our further interference. There is no substantial question of law involved and each of these appeals are dismissed. 20. Our order passed in Central Excise Appeal No. 169 of 2015 shall govern the outcome of other appeals as well. There may be distinct input services involved and there may be a few changes insofar as the assessment year or the nature of the business, but all the services qualify as input services is the conclusion of the Tribunal. 21. We uphold that for the very reasons that persuaded us to dismiss the Revenue''s appeal namely, Central Excise Appeal No. 169 of 2015. Hence, each of these appeals fail and they are dismissed with no order as to costs.