Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, ... vs Endurance Technogies Pvt. Ltd on 4 September, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I Application No. ST/CO/91011/15-Mum APPEAL No.ST/90055/14-Mum (Arising out of Order-in-Appeal No. AV(196)202/2024 dated 11/09/2014 passed by Commissioner of Central Excise (Appeals), Aurangabad.) For approval and signature: Honble Mr. M.V. Ravindran, 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 : 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?
====================================================== Commissioner of Central Excise, Aurangabad Appellant Vs. Endurance Technogies Pvt. Ltd. Respondent Appearance: Ads. Request for Appellant Shri S.R.Nair, Examin. (AR), for Respondent CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Date of Hearing : 04/09/2015 Date of Decision : 04/09/2015 ORDER NO Per: M.V. Ravindran
This appeal is filed by the Revenue against the Order-in-Appeal No. AV(196)202/2024 dated 11/09/2014. Respondent has also filed a cross objection.
2. The appeal and cross objection both are disposed of by a common order.
3. When the matter was called out, court master produces a letter from the respondent seeking adjournment, on perusal of the records, I find that the issue involved in the Revenue appeal is in a very narrow compass, accordingly rejecting the application for the adjournment of the matter, I take up the appeal for disposal.
4. The relevant facts that arises for consideration are the appellant herein on pursuance of Tribunal order no. A/2272/13/CSTB/C-1 dated 24/10/2013 filed the refund claim Rs. 21,02,359/- The Tribunal vide order dated 24/10/2013 has held that the service tax paid by the respondent in respect of Business Auxiliary Services for the period September 2004 to February 2005, is not taxable. The lower authority after following the due process of law, rejected the refund claim by the respondent. Against such an order owe appeal was preferred before the first appellate authority who set aside the order-in-original and allowed the appeal of the respondent.
5. Learned departmental representative while taking me through the entire case records, submits that assessee has failed to produce original GAR and other documents, evidences payments of Rs. 21,02,259/- before the adjudicating authority; that the first appellate authority has erred in holding that the submission of original documents evidence payment as irrelevant; he relies upon the judgment of the Apex court in the case of Pransata Bhattacharjee 2010 (251) E.L.T. 161 for the preposition that the refund claim without relevant documents is rejectable, provisions of section 11B are relied out also the judgment of Tribunal in case of Sterlite Industries India Ltd. 2010 (254) E.L.T. 533, Hindustan Coca cola Beverages Pvt. Ltd. 2011 (266) E.L.T. 266. It is also his submission that the documents produced by the assessee before the adjudicating authority did not match with the entries made in the PLA register.
6. On perusal of the records, I find that it is not in dispute that the assessee respondent having contested of none applicability of tax under Business Auxiliary Services, before the tribunal nothing is brought on records that the said order is contested by revenue.
7. On such a background I find that the Tribunal categorically held in the favor of the assessee respondent by an order dated 2.4.2010 and if it is so, tax liability discharged by appellant assessee respondent is not in doubt. Consequent to the said order in his favor, assssee respondent filed the refund claim before the adjudicating authority. I find that the arguments put forth by the learned departmental representative will not carry the case for the Revenue any further, for a simple reason that discharge of tax liability has never been contested, in as much it is on record that, amounts paid by the appellants were appropriated by the lower authorities in the first round of litigation. As regards other points raised by the learned departmental representative that there is a mismatch of chalans produced and PLA. I find that there is no dispute that the entire amount as tax liability has been paid by respondent and having been appropriated by the lower authorities in order in original now department cannot turn around and say, There is no payment of amount in the absence of documents. On such a background, I find that the findings recorded by the first appellate authority in the impugned order are correct. I reproduce the same as in paragraph 6.1 to 6.6.
8. It can be seen from the above reproduced reasonings of the first appellate authority, he has correctly set aside the order-in-original.
9. In my considered view, the impugned order is correct, legal and does not suffer from any infirmity. Appeal is rejected and the cross objection filed by the respondent assessee is also disposed of.
(Pronounced in Court) akp (M.V. Ravindran) Member (Judicial) 1 7 APPEAL No.ST/90055/14-Mum