Custom, Excise & Service Tax Tribunal
M/S Wns Global Services Pvt. Ltd vs Cce, Pune-Iii on 7 January, 2014
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. II
IN APPEAL NO. ST/104/12
(Arising out of Order-in-Appeal No. PIII/RS/343-344/2011 dated 30.11.2011 passed by the Commissioner of Central Excise (Appeals) Pune III.)
For approval and signature: Honble Shri Anil Choudhary, 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 : yes 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?
M/s WNS Global Services Pvt. Ltd.
: Appellant
Versus
CCE, Pune-III
: Respondent
Appearance Shri Bharat Raichandani, Advocate : For Appellant Shri D.D. Joshi, Superintendent (A.R.) : For Respondents CORAM:
HONBLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) Date of Hearing : 07.01.2014 Date of Decision: 07.01.2014 ORDER NO.......................................................
Per: Anil Choudhary:
The appellant is registered with the Service Tax department and is engaged in export of taxable service. The appellant is registered under Software Technology Park of India (STPI) scheme for provision of services from its premises. The nature of the service provided is, Business Process Outsourcing Services (BPO) to its customers outside India. These services are covered under the category of Business Auxiliary Services. In the course of providing the output services, the appellant consumed certain input services. The output services are exempted being export of services, the appellant was unable to utilize CENVAT credit availed on the input services. As permissible under Rule 5 of the CENVAT credit Rules, 2004, the appellant applied for refund for the quarter April June, 2008 and July September, 2008.
2. For the period April June, 2008, the claim of refund was filed on 18.02.2009 for an amount of Rs.26,40,214/-. Vide Order-in-Original dated 17.11.2009, an amount of Rs.3,33,152/- was disallowed from total claim. Similarly, for the period July September, 2008 refund claim was filed for an amount of Rs.24,11,501/- on 19.03.2009. Vide Order-in-Original dated 12.12.2009, an amount of Rs.6,81,600/- was disallowed and balance was sanctioned. Being aggrieved by disallowance in part of the refund claim, the appellant preferred an appeal before the Commissioner (Appeals).
3. As per a common appellate order dated 30.11.2011, it has been noted that rejection of refund claim was on account of non-production of some invoices, pertaining to the claim. According to the appellant, the said rejection was wrong and untenable. The appellate authority observed that there is no dispute on the fact that the appellant failed to submit invoices evidencing payment of Service Tax on input services. Refund claim filed without documents evidencing payment of Service Tax on input services cannot be considered. Further, the refund sanctioning authority does not have any discretion to consider the refund claim in absence of supporting documents and accordingly, it was held that the adjudicating authority has rightly disallowed the refund claim to the extent of the claim not duly supported. Accordingly, the Commissioner (Appeals) upheld the Order-in-Original.
4. It is contended by the appellant before this Tribunal that time sought for producing original invoices in support of the rejected claim was not allowed, although xerox copies of such invoices were on record. The appellant refers to his letter dated 24.11.2011 filed before the Commissioner (Appeals) where it is stated that in respect of the opportunity of personal hearing fixed on 26.11.2011, the notice was received only on 22.11.2011 and hence being unable to attend the hearing without preparation, at a short notice, had sought time for filing the documents. It is observed from the impugned order that the appellate authority has failed to take notice of the application praying for time and has passed the appellate order in hurry. Thus, the appellants have been denied the reasonable opportunity of personal hearing and thus the appellate order is within the gross violation of principles of natural justice. Further, the learned Counsel submits that there is no requirement in law for producing original invoices. There is no such requirement under the statute. The Counsel for the appellant also draws my attention to TRU Circular No. 120/01/2010-ST dated 19.01.2010 wherein dealing with subject of problem faced by exporter in availing refund of excess credit. Difficulties being faced by the exporter, services has been considered and in para 3 and 4 of the Circular, it has been directed as follows:-
3. In case of incomplete invoices, the department should take a liberal view in view of various judicial pronouncements by Courts. It had earlier been prescribed in circular No.106/09/2008-ST dated 11.12.2008 that the invoices/challans/bills should be complete in all respect. This circular was issued with reference to notification No.41/2007 dated 06.10.2007 as specific services eligible for refund under the notification has been specified. Thus, a stricter requirement exists under the said notification for ascertaining the actual service which has been used in the export of goods. In the case of refund under Rule 5, (i) so far as the nature of the service which has been received by the exporter can be ascertained; (ii) tax paid therein is clearly mentioned; and (iii) other details as required under rule 4(a) are mentioned, the refund should be allowed if the input service has a nexus with the service/goods exported as discussed earlier. In any case, the suggested Chartered Accountants certificate should clearly bring out the nature of the service and this will assist the officer in taking a decision.
4. The instructions contained in this circular should be implemented with immediate effect and the pending claims may be disposed of accordingly. It is expected that with the clarifications provided and liberalization of procedure, most of the impediments to smooth and expeditious disposal of exporters claims for refund of accumulated credit would be removed. The Board, therefore, expects that the concerned refund sanctioning authorities should decide all claims of exporters within 30 days of their receipt as has been prescribed in notification No. 17/2009-ST. Any lapse in this regard would be viewed seriously. In case of any doubt, an immediate reference may be made to the Board.
6. The learned A.R. supports the impugned order and prays to uphold the same.
7. Having considered the rival contentions, I am of the view that there have been miscarriage of justice in denial of adequate opportunity of hearing to produce the documentary evidence in support of the amount of the rejected claim of refund. There is no requirement in law to produce original invoices. The authorities below have not considered the above cited circular as well. Thus, the matter is remanded to the adjudicating authority with a direction to consider the copies of invoice(s) now produced or till the time of hearing in respect of the balance claim in dispute. Thus, the appeal is allowed by way of remand.
8. The appellant is directed to appear before the adjudicating authority with a copy of this order and seek the date of hearing and on such date fixed, appear before the adjudicating authority with all the supporting documents which they want to rely in support of their claim. Therefore, the adjudicating authority shall pass an order, in accordance with law.
(Dictated and pronounced in open Court) (Anil Choudhary) Member (Judicial) Sp 5