Custom, Excise & Service Tax Tribunal
M/S. Lvs Marketing India Pvt. Ltd vs Cst & St, Delhi on 19 June, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi 110 066.
Date of Hearing : 19.06.2013
ST/57334/2013-ST[SM]
[Arising out of Order-in-Appeal No. 48/S.Tax/D-II/2013 dated 07.02.2013 passed by the Commissioner (Appeals), Central Excise, Delhi]
For Approval & Signature :
Honble Mr. Sahab Singh, Member (Technical)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3.
Whether their Whether their Lordships wish to see the fair copy of the order?
Seen
4.
Whether order is to be circulated to the Department Authorities?
Yes
M/s. Lvs Marketing India Pvt. Ltd. Appellant
Vs.
CST & ST, Delhi Respondent
Appearance:
Shri Tejas Aror, Rep. - for the Appellant
Shri M.S. Negi, AR - for the Respondent
Coram : Honble Mr. Sahab Singh, Member (Technical)
Final Order No. 56718/2013
Per Sahab Singh :
This appeal is filed by M/s Lvs Marketing (India) Pvt. Ltd. against the Order in Appeal No. 48/S.Tax/D-II/2013 dated 07.02.2013 passed by the Commissioner Central Excise, Delhi.
2. Appellants are registered with service tax Department for providing taxable services i.e. in Business Auxiliary Service. The refund claim was filed by the appellants in respect of Cenvat Credit under Notification No. 5/2006-CE dated 14.03.2006 issued under Rule 5 of Cenvat Credit Rules, 2004, on the ground that they have used input services for providing output services for export purpose. The refund was partly allowed by the original authority amounting to Rs. 2,23,350/-. Against the rejection of refund appellant filed the appeal before the Commissioner Central Excise (Appeal), who vide impugned order has rejected their appeal. The appellant preferred this appeal in Tribunal against the said impugned order.
4. Heard both sides.
4. I find that the refund was rejected by the lower authority on two grounds. One ground taken by the original authority is in respect of incorrect mentioning of the address of the appellant in the invoice and the second ground of rejection of refund is in respect of service tax paid on services of supply of tea, coffee and snacks to their customers by the service recipient. In respect of Cenvat Credit availed on expenses such as kitchen amenities, monthly free, beverages, snacks etc. I find that there is no evidence to substantiate that these services were utilized for providing the output service which were exported by the appellants and in absence of which I find that Commissioner (Appeal) has rightly rejected their contention and upheld the Order in Original. I uphold this finding of the Commissioner (Appeal) in respect of denial of refund related to Cenvat Credit availed on expenses such as kitchen amenities, monthly free, beverages and snacks etc.
4. As regards denial of refund in respect of Cenvat Credit availed by the appellants in respect of those invoices where incorrect address of appellant mentioned. I find that original authority in the Order in Original has observed however, the party failed to produce any other evidence, such as any agreement with the service provider, which could sustain that the input services were received by them at their address situated at Kalpataru Synergy Building, Lever 2, Opposite Grand Hyatt, Santacruze (East), Mumbai 400055. Appellants submit that they have submitted the copy of agreement before the Commissioner (Appeals) but Commissioner (Appeal) has observed that the agreement is not legible. I find that since the original authority has observed that agreement with the service provider could to be taken as a evidence for the purpose of examining of the refund claim and agreement has been submitted by the appellant, matter need to be remanded to the adjudicating authority for examination of the same for the purpose of scrutinizing their refund claim on the ground of incorrect mentioning of the address of the appellant in the invoices. Accordingly I remand the matter back to the original authority for fresh decision on this point after affording the hearing to the appellant. Appeal is disposed of in above term.
(Dictated & pronounced in open Court) (Sahab Singh) Member (Technical) Neha 2