Custom, Excise & Service Tax Tribunal
John Deere India Pvt. Ltd vs Commissioner Of Central Excise, ... on 27 April, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. I Appeal No. ST/503/11-Mum [Arising out of Order-in-Appeal No. PIII/VM/84/2011 dated 26/04/2011 passed by Commissioner of Central Excise (Appeals), Pune-III] For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) =======================================================
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 : No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : seen
of the Order?
4. Whether Order is to be circulated to the Departmental: Yes
authorities?
======================================================= John Deere India Pvt. Ltd.
:
Appellant VS Commissioner of Central Excise, Pune-III :
Respondent Appearance Shri S.A. Gundecha, Advocate for the Appellant Shri S.R. Nair, E.O. (AR) for the Respondent CORAM:
Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) Date of hearing: 27/04/2016 Date of decision: 27/04/2016 ORDER NO. Per : M.V. Ravindran This appeal is directed against Order-in-Appeal No. PIII/VM/84/2011 dated 26/04/2011.
2. Heard both sides and perused the records.
3. The appellant herein is engaged in providing Consulting Engineering Service and has exported the said service by paying the service tax amounting to Rs. 7052644/-. After export was done, they filed a rebate claim in terms of Export Services Rules, 2005. Lower authority sanctioned the rebate claim by way of credit to Cenvat account of the appellant. Appellant is aggrieved by such an order, as according to them, the Cenvat credit cannot be utilized as exports of the services are more than the domestic clearances and rebate claim should be sanctioned to them in cash.
4. On careful consideration of the submissions made by both the sides and perusal the records, we find that Ld. Counsel was correct in emphasizing that the rebate claim should be paid in cash. It is settled law that the debit of an amount in Cenvat account is considered as discharged of tax liability. Our views are fortified by the judgments of Honble High Court of Uttarakhand in the case of Apco Pharma Ltd. - 2015 (319) ELT 641, we reproduce ratio contained in para no. 20:
20. Upon hearing the Ld. Counsel, the Court finds that the adjudicating authority had sanctioned the refund claimed by way of credit in their RG23A Part II account. The court finds that the assessee is availing exemption and is not in a position to utilize the credit and if the assessee is not able to utilize the credit, the very basis of the refund is defeated. Consequently, the Commissioner (Appeals) was justified in giving the assessee the cash refund of the credit. In Commr. of Cen. Ex. Vs. Ashok Arc 2006 (193) ELT 399 = 2007 (7) STR 365, the High Court of Jharkhand held that the assessee is entitled for the refund in cash. In view of the aforesaid, the submission of the Ld. Counsel for the appellant cannot be accepted.
5. In view of the foregoing and in the facts and circumstances of this case, we set aside the impugned order and allow the appeal with consequential relief.
(Operative order pronounced in court) C.J. Mathew Member (Technical) M.V. Ravindran Member (Judicial) saifi 3 Appeal No. ST/503/11-Mum,