Custom, Excise & Service Tax Tribunal
Commissioner Of Customs, Central ... vs Sociedade De Fomento Industries Pvt Ltd on 20 February, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. ST/189, 190, 191, 192, 193/12-MUM ST/262, 263, 264, 265, 751/12-MUM [Arising out of Orders-in- Appeal No. GOA/CEX/GSK/01 to 05/2012 dated 6/1/2012 and No. GOA/CEX/GSK/12/2012 , NO. GOA/CEX/GSK/13/2012, No. GOA/CEX/GSK/14/2012, No. GOA/CEX/GSK/15/2012 dated 31/1/2012 and GOA/CEX/GSK/58/2012 dated 24/8/2012 passed by the Commissioner (Appeals) Central Excise & Customs & Service Tax, Goa] For approval and signature: Honble Mr Ramesh Nair, Member(Judicial) =======================================================
1. Whether Press Reporters may be allowed to see : No
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 : seen
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4. Whether Order is to be circulated to the Departmental: Yes
authorities?
======================================================= Commissioner of Customs, Central Excise & Service Tax, Goa :
Appellants VS Sociedade De Fomento Industries Pvt Ltd. :
Respondent Appearance Shri. B. Kumar Iyer, Superintendent (A.R.) for the Appellants Shri. C.S. Biradar, Advocate for the Respondent CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Date of hearing: 20/2/2015
Date of decision 20/2/2015
ORDER NO.
Per : Ramesh Nair
These ten appeals directed against Orders-in- Appeal No. GOA/CEX/GSK/01 to 05/2012 dated 6/1/2012, No. GOA/CEX/GSK/12/2012, No. GOA/CEX/GSK/13/2012, No. GOA/CEX/GSK/14/2012, No. GOA/CEX/GSK/15/2012 dated 31/1/2012 and No. GOA/CEX/GSK/58/2012 dated 24/8/2012 passed by the Commissioner (Appeals) Central Excise, Customs & Service Tax, Goa, as detailed below: Sr. No. Appeal No. Refund claim Allowed in OIO Withdrawn/ disallowed Allowed in OIA Rejected in OIA 1 ST/189/12 1,033,989 637,027 589 396,371
-2
ST/190/12 1,575,338 1,248,037 10,671 276,321 40,309 3 ST/191/12 1,071,173 617,963 10,429 453,210
-4
ST/192/12 2,496,924 1,662,506 53,626 780,792
-5
ST/193/12 1,663,094 847,470 18,502 761,429 35,693 6 ST/262/12 1,148,771 559,438
-
483,761 105,572 7 ST/263/12 583,189 325,454
-
234,516 23,219 8 ST/264/12 4,880,530 2,722,241 132,711 2,025,578
-9
ST/265/12 1,700,188 1,198,381 21,255 427,826 52,726 10 ST/751/12 5,339,818 2,882,714
-
2,457,104
-
In the above mentioned Orders-in-Appeals, the Ld. Commissioner(Appeals) partly allowed the appeals of the respondents. The issue involved is that the export service providers raised service bills in the name of M/s. Greater Ferromet, which is division of M/s. Sociedade De Fomento Industries Pvt Ltd and the export were made by M/s. Sociedade De Fomento Industries Pvt Ltd. The claim of the Revenue is that since the service bills were not raised in favour of division of the company i.e. M/s. Greater Ferromet, refund of export service under Notification No. 17/2009-ST dated 7/7/2009 can not be granted to the exporter company i.e. M/s. Sociedade De Fomento Industries Pvt Ltd.
2. Shri. B. Kumar Iyer, Ld. Superintendent (A.R.) appearing on behalf of the Revenue submits that against export of Iron Ore Fines the payment of barge parties were made by M/s. Greater Ferromet and not by M/s. Sociedade De Fomento Industries Pvt Ltd and the respondent company has not produced any evidence that payment of service made by the respondent. In asmuch as all the said invoices raised by M/s. Greater Ferromet, refund on such invoices are not admissible. It his submission that M/s. Greater Ferromet is holding separate Central Excise registration as 100% EOU, it can not be equated with the status of M/s. Sociedade De Fomento Industries Pvt Ltd. Therefore against bills raised to M/s. Greater Ferromet and payment made by said division can not be considered for process of refund claim of respondent company. Therefore Ld. Commissioner (Appeals) has erred in allowing the appeal. He prays for setting aside the impugned order and allow the appeal of the Revenue.
4. Shri. C.S. Biradar, Ld Counsel for the respondent submits that though the invoices of services were issued in the name of M/s. Greater Ferromet and the payment was also made by the said M/s. Greater Ferromet, M/s. Greater Ferromet not a separate entity, it is a division of the respondent M/s. Sociedade De Fomento Industries Pvt Ltd therefore even if invoices were issued in the name of said division and payments were made by division to the service provider all these transactions pertains to the respondent company M/s. Sociedade De Fomento Industries Pvt Ltd. He referred to various documents such as PAN Card, Service Tax Registration and Certificate of incorporation issued by the Registry of company from which it can be seen that there is no dispute that M/s. Greater Ferromate is a division of the respondent company. He submits that taking into consideration all these documents the Ld. Commissioner (Appeals) has taken a view that since division is not separate entity, the transaction made by respondent only. Therefore the Commissioners(Appeals) order is just and proper and the same does not require any interference. He prays for dismissal of the appeal of the Revenue.
4. I have carefully considered the submissions made by both the sides.
5. The fact that M/s. Greater Ferromate is division of the respondent company M/s. Sociedade De Fomento Industries Pvt Ltd is undisputed. Even though the service invoices of barge issued in favour of the division and the payment made by that division and transaction bills to the respondent company only and there is no any other entity therefore it can not be said that division and the company have separate status. The Ld. Commissioner(Appeals) has considered this fact and given detailed findings in the impugned order which is extracted below.
I have examined the impugned orders and contentions. I observe that Appellants are registered as company with the Registrar of Companies. M/s. Greater Ferromet is a division of the Appellant. This is an admitted position in the notice and impugned order. No separate registration has been allotted by the Registrar to M/s. Greater Ferromet. Appellant has been allotted only one PAN number AABCS8860QST001 by the Income Tax department. No separate PAN has been allotted to M/s. Greater Ferromet. The service tax registration issued to Appellant and to M/s. Greater Ferromet division carries the above referred PAN number. Appellant prepares only one balance sheet and filed one return for the entire group with the Income Tax Departement. It is well established principal of law that a Division has no separate legal entity of its own. It has been held in KCP Ltd. Vs. State of Andra Pradesh (1993(88) STC 374 (AP) wherein the High Court is claimed to have observed that The registration certificate obtained by each branch or unit may, at best show, that they are separate assessable entities. But it has no bearing on the question whether they are distinct and different legal entities capable of transferring property in goods from each other .. separate registration certificates issued to the units or branches of an incorporated company have never been considered to be sufficient to confer the legal personality on such units and branches.
In view of the above, the stand of the Department that since M/s. Greater Ferromet is not registered in the jurisdiction of the Central Excise Division, the Refund is not admissible to M/s, Greater Ferromet, does not have any legal basis. When once the Appellant has clarified that M/s. Greater Ferromet is their Division and has given legal proof for the same, the refund claim cannot be denied. Department has also not been able to dispute that M/s. Greater Ferromet is not a division of the Appellant. In such circumstances, rejection of the claim does not stand to reason. Refund has to be granted to the Appellant.
Another objection raised by the department is that in certain refund claims the original invoices have not been filed. This objection is well founded. The departmental authorities are handling public funds and they have to be circumspect. In the absence of original invoices, the claims can not be process. Hence this objection by the Department is upheld.
From the above findings of the Ld. Commisssioner (Appeals) there appears to be no infirmity. As regard the ground of appeal in the Revenues appeal that invoices against which refund was claimed are not in the name of respondent company the refund in not admissible in terms of notification No. 17/2009-ST, I do not agree with this contention for the reason that since it is undisputed that M/s. Greater Ferromet is only a division of respondent company the refund in any case can not be given to the division, it has to be given to a legal entity i.e. M/s. Sociedade De Fomento Industries Pvt Ltd in the present case, hence in my view there is no contravention of the condition of Notification No. 17/2009-ST. In view of above discussion, I am of the view that Ld. Commissioner (Appeals) has correctly allowed the refund of the respondent in the impugned order and I do not find any infirmity in the said impugned order, therefore the same are upheld. Appeals of the Revenue are dismissed.
(Operative part pronounced in the Court) Ramesh Nair Member (Judicial)) sk 2