Custom, Excise & Service Tax Tribunal
M/S. Softtek India Pvt Ltd vs Commissioner Of Service Tax Bangalore ... on 20 November, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: ST/23721/2014-SM, ST/23722/2014-SM, ST/23723/2014-SM, ST/23724/2014-SM, ST/23730/2014-SM [Arising out of Order-in-Appeal No. 610 to 614/2014 dated 12/09/2014 passed by Commissioner of Central Excise, BANGALORE-II (Appeal).] M/s. Softtek India Pvt Ltd. (Formerly M/s. Systech Integrators India Pvt. Ltd.) Ozone Manay Tech Park A Block, 2nd Floor, No 56/18- 55/9. Hosur Main Road BANGALORE - 560068 KARNATAKA Appellant(s) Versus Commissioner of Service Tax BANGALORE SERVICE TAX- I 1ST TO 5TH FLOOR, TTMC BUILDING, above BMTC BUS STAND,DOMLUR BANGALORE, - 560071 KARNATAKA Respondent(s)
Appearance:
Mr. B.G.CHIDANANDA URS, CA #520, AMRUTH NIVAS, 7TH MAIN, 13TH CROSS, RMV 11 STAGE, DOLLARS COLONY, BANGALORE -560094 For the Appellant Mr. N. Jagadish, AR For the Respondent Date of Hearing: 20/11/2017 Date of Decision: 20/11/2017 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 22834-22838 / 2017 Per : S.S GARG These five appeals have been filed by the appellant against the common impugned order dated 12.9.2014 whereby the Commissioner (A) has rejected the refund on the basis that in the FIRCs, the purpose of remittances is an advance receipt, which cannot be correlated to the exports.
2. Since the issue involved in all the five appeals is identical, therefore, all the five appeals are being disposed of by this common order. The details of all the five appeals are given herein below:
Sl. No. Appeal No. Period Involved Refund Amount 1 ST/23721/2014 October to December 2009 Rs.4,74,574/-2
ST/23722/2014 July to September 2009 Rs.6,18,642/-3
ST/23723/2014 April to June 2009 Rs.7,97,050/-4
ST/23724/2014 January to March 2009 Rs.8,95,153/-5
ST/23730/2014 October to December 2008 Rs.10,86,523
3. Briefly the facts of the present case are that the appellants are registered as 100% EOU and have preferred applications seeking refund of service tax paid on input service used in the export of software for the various periods mentioned in the table given above. Thereafter, a show-cause notice was issued to the appellant to reject the refund claims on various grounds. After following the due process, the adjudicating authority rejected the refunds on the ground that the FIRCs contains an address different from that of claimant STPI and also the FIRCs records the remittances received as advance and therefore, the receipt of remittances cannot be correlated. Therefore, the appellant have not satisfied the conditions prescribed under Rule 3(2) of Export of Service Rules, 2005. Aggrieved by the said order, appellant filed appeals before the Commissioner (A), who also upheld the Orders-in-Original; hence, the present appeals.
4. Heard both the parties and perused the records.
5. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed contrary to the provisions of the Act and the various decisions rendered by the Tribunal. He further submitted that there are independent provisions to assess as to whether the assessee has complied with the Export of Service Rules, 2005 or not but such assessment cannot be undertaken when the appellant has filed the refund applications. He further submitted that the finding is contrary to the stand taken by the department in the show-cause notice. He further submitted that if the department holds that the claimant has not exported the service and they had to charge service tax on the service so rendered and had to pay service tax on the services so rendered, then there should be a demand under the Act for such tax which is due to be paid, but the findings recorded by both the authorities is not with regard to the fact that appellant have not rendered the services. He further submitted that no effort was made by the department to ascertain from the STPI or the RBI independently as to whether the SOFTEX Forms are retired by them or not considering the remittances as towards such exports or not. The RBI having accepted the receipt of remittance from the company, there cannot be a finding by the department that the remittances were not received when the claimant has declared that the remittances are received and accounted in their books as having received such remittances. He also submitted that both the authorities have not accepted the experts evidence in the form of Chartered Accountant, who has certified that the remittances were received. He further submitted that it is not possible to establish one to one correlation of the invoices.
6. On the other hand, the learned AR reiterated the findings of the impugned order and submitted that the correlation statement has not been furnished and the one to one correlation has not been proved or established.
7. After considering the submissions of both the parties and perusal of the material on record, I find that it is not the case of the department that the appellant has not exported the service whereas the appellant has proved that there has been export of service and FIRCs have been received in advance, which has been accounted for in the books of accounts. Further, they have also produced the certificate of Chartered Accountant to the effect that the remittances were received. Further, I find that when the service was rendered, there was no objection by the department that the said service is not an export of service and they have raised the objection only when the refund was claimed. Further, I find that the allegation that FIRCs only talks about advance and thus, the correlation cannot be done is untenable when the exporter has declared that FIRCs are towards the export effected and that the foreign inward remittances has been received, which is not in question or doubt. In view of the discussions above, I am of the view that the impugned order denying the refund is unsustainable in law and therefore, I set aside the same by allowing all the appeals of the appellant.
(Operative portion of the Order was pronounced in Open Court on 20/11/2017.) S.S GARG JUDICIAL MEMBER rv...
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