Custom, Excise & Service Tax Tribunal
M/S. Infosys Technologies Ltd vs C.C.E.- Chandigarh on 27 March, 2014
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI COURT NO. I Date of hearing/Decision:27.03.14 Appeal No. ST/152/2009 -CU[DB] [Arising out of Order-In-Appeal No. 485/CE/CHD/2008,dt.23.09.2008, passed by Commissioner of Central Excise (Appeals), Chandigarh] M/s. Infosys Technologies Ltd. Appellant Vs. C.C.E.- Chandigarh Respondent
For approval and signature:
Honble Mr. Justice G.Raghuram, President Hon'ble Mr. Rakesh Kumar, Member (Technical) 1 Whether Press Reporters may be allowed to see 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 of the Order? 4 Whether Order is to be circulated to the Departmental authorities? Present:
Sh. Anirudh R.J.Nayak, Advocate & Sh. K.S.Ravishankar, Advocate - for the appellant Sh. Yashpal Sharma, DR - for the Respondent Coram :
Honble Mr. Justice G.Raghuram, President Hon'ble Mr. Rakesh Kumar, Member (Technical) FINAL ORDER NO. 51463/2014 Per Rakesh Kumar:-
1.1 The appellant are engaged in providing taxable service which they have exported. The period of dispute in this case is from April07 to Sept.07. In providing the output service for export, they have used certain inputs services in respect of which they took Cenvat Credit of Rs.11,20,486/-. Since they could not utilize this credit for payment of service tax on their domestic service transactions, they in accordance with the Provisions of Notification No.5/06-CE(NT) dt. 14.03.06 issued under Rule 5 of Cenvat Credit Rules, 2004, applied for cash refund of the accumulated Cenvat Credit. This refund application filed in terms of the Provisions of Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No.5/06-CE(NT) issued under this rule was considered by the Jurisdictional Assistant Commissioner, who vide Order-in-Original dt. 04.4.08 rejected the refund application on the ground that the appellant have not followed the procedure prescribed under Notification No. 12/05-ST, issued under Rule 5 of the export of service rules 2005 and accordingly did not fulfill the conditions of the Notification No.5/06-CE(NT) issued under Rule 5 of Cenvat Credit Rules, 2004. The appeal against this order of Jurisdictional Assistant Commissioner was dismissed by the Commissioner (Appeals) vide order-in-appeal dt. 23.09.08, against which this appeal has been filed.
2. Heard both the sides.
3. Sh. K.S.Ravishankar, Advocate and Sh. Anirudh R.J.Nayak, Advocate, appearing on behalf of the appellant, pleaded that the refund application was filed by the appellant under Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No.5/06-CE(NT), issued under this rule, that Notification No.5/06-CE(NT) prescribed the conditions to be fulfill and the procedure to be followed for claiming the cash refund of the accumulated Cenvat Credit, that Notification No. 12/05-ST issued under export of service rule 2005 prescribes the conditions to be fulfilled and the procedure to be followed for claiming rebate in respect of export of service, of the service tax paid on the output service exported or of excise duty paid on inputs and/or service tax paid on inputs services used for providing the services which had been exported, that Notification No. 12/05-ST, issued under export of service rule 2005 has no application to this matter, that in view of this the impugned order rejecting the refund application on the ground that the conditions prescribed in Notification No. 12/05-ST have not been fulfilled and the procedure have not been followed, is totally incorrect.
4. Sh. Yashpal Sharma, the learned DR, defended the impugned order by reiterating the findings of the Commissioner (Appeals).
5. We have considered the submissions from both the sides and perused the records. On going through the records, we find that there is no dispute that the refund claim, in question, is for refund of accumulated Cenvat Credit terms of Rule 5 of the Cenvat Credit Rules, 2004 for which the Notification No. 5/06-CE(NT), issued under this rule, prescribes the condition to be fulfilled and the procedure to be followed. The Notification No. 12/05-ST issued under Rule 5 of the Export of service Rules 2005, prescribes the conditions to be fulfill and procedure to be followed for claiming rebate in respect of export of services. The two schemes are totally different and the procedure prescribed and the conditions to be fulfilled for claim of cash refund of accumulated Cenvat Credit under Rule 5 of the Cenvat Credit Rules, 2004 and for claiming rebate in respect of export of services in term of Rule 5 of the Export of Service Rules, are totally different. The lower Authorities mixed up the two issues. In this case it was required to be seen as to whether the procedure prescribed under Notification No. 5/06-CE(NT), issued under Rule 5 of Cenvat Credit Rules, 2004 has been followed and the conditions prescribed in this Notification have been fulfilled. Notification No. 12/05-ST issued under Rule 5 of the Export of Service Rules, 2005, which prescribes the conditions to be fulfilled and the procedure to be followed for claiming rebate in respect of export of services, has no application. The impugned order is, therefore, set aside and the matter is remanded to the Assistant Commissioner for examining the refund claim under Rule 5 of the Cenvat Credit Rules, 2004 on the basis of the conditions and the procedure prescribed, in this regard in the Notification No.5/06-CE(NT) dt. 14.03.06 which is the correct Notification applicable to this case. The appeal stands dispose of as above.
(Justice G.Raghuram) President (Rakesh Kumar) Member (Technical) S.Kaur 1