Custom, Excise & Service Tax Tribunal
Commissioner Of Service Tax Bangalore ... vs M/S. Technotree Convergence Pvt. Ltd on 24 January, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: ST/21775/2016-SM, ST/21777/2016-SM, ST/21779/2016-SM, ST/21783/2016-SM, ST/21784/2016-SM, ST/21785/2016-SM [Arising out of Order-in-Appeal No. 1112-1129/2016 dated 11/08/2016 passed by Commissioner of Service Tax , Bangalore Service Tax(Appeals) ] COMMISSIONER OF SERVICE TAX Bangalore Service Tax-II 4TH FLOOR, T.T.M.C. -B.M.T.C. BUS STAND BUILDING, OLD AIRPORT ROAD BENGALURU - 560071 Appellant(s) Versus M/s. Technotree Convergence Pvt. Ltd No. 65/2 B Block 6th Floor, Level 7, Bagmane Tridib Bagmane Tech Park C.V. Raman Nagar, Byrasandra BANGALORE 560 093. KARNATAKA Respondent(s)
Appearance:
Shri Pakshi Rajan, AR For the appellant Shri Jatin Christopher, CA For the respondent Date of Hearing: 24/01/2017 Date of Decision: 24/01/2017 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 20127-20132 / 2017 Per : S.S GARG The present six appeals have been filed by the Revenue against the impugned order dated 11.8.2016 passed by the Commissioner (A) wherein the Commissioner (A) has disposed of 18 appeals and from the impugned order only six appeals have been filed by the Revenue. All the six appeals are pertaining to limitation and therefore, all the six appeals are being disposed of by this common order.
2. Briefly the facts of the case are that the assessee is registered with the Service Tax department providing taxable services falling under the category of rent-a-cab scheme operator service, consulting engineer service, security/detection agency service, manpower recruitment/supply agency service, online information and database access service, retrieval service through computer network, works contract service, information technology software services and legal consultancy services. The assessee filed six refund claims as listed below seeking refund of unutilized CENVAT credit paid on input service used for providing the output services exported under Rule 5 of CENVAT Credit Rules (CCR) 2004 read with Notification No.5/2006-CE dated 14.3.2006.
Appeal No. Period Involved Amount ST/21775/2016 July - September 2011 Rs.15,06,123/-
ST/21777/2016 January March 2012 Rs.2,86,288/-
ST/21779/2016 April June 2011 Rs.9,88,539/-
ST/21783/2016 January March 2010 Rs.23,18,551/-
ST/21784/2016 April June 2009 Rs.77,43,053/-
ST/21785/2016 July September 2009 Rs.30,36,672/-
The said refund claims contained various discrepancies and also hit by limitation of time under Section 11B of the Central Excise Act, 1944 read with Notification No.5/2006 dated 14.3.2006 and hence show-causes notice were issued to the assessee to reject the above said refund claim vide Order-in-Original on the ground of limitation of time in terms of Section 11B of Central Excise Act made applicable to the Service Tax under Section 83 of the Finance Act. Aggrieved by the said order-in-original, the assessee preferred appeals with the Commissioner of Service Tax (Appeals). The Commissioner (A) vide Order-in-Appeal No.1112-1129/2016 dated 11.8.2016, on the issue of limitation had held that refund claims under Rule 5 of CCR, 2004 has to be filed before the expiry of one year from the date of export. With regard to the relevant date for computation of one year, the appellate authority has held that the statute provides an option to the exporter to file refund claim for a quarter, therefore the cut-off date for an assessee to file the refund claim in terms of Section 11B has to be interpreted as the last date of the quarter to which the claim pertains. The appellate authority has held that the said claim is not time bared and allowed to this extent by way of remand. Aggrieved by the said order, the Revenue has filed these present six appeals.
3. Heard both the parties and perused the records.
4. The learned AR submitted that the impugned order is not sustainable in law because in the present case, it is not the export of goods which is involved rather it is the case where there is an export of service. He further submitted that the relevant date should be the end of the quarter in which the consideration for services exported is realized. He also submitted that in terms of Section 83 of Finance Act, 1994, the provisions of Section 11B is made applicable to the Service Tax provisions insofar as it relates to the Service Tax. Since the tax on services would be leviable to pay only on receipt of consideration as per Rule 6 of Service Tax Rules, 1994, the relevant date for determining export should be reckoned from the date of realization of export proceeds. He also submitted that in terms of provisions of Export of Service Rules, 2005, the services could be termed as export only upon the receipt of consideration in convertible foreign exchange. He also submitted that various Courts have consistently held that the relevant date for determining the limitation for refund of export of service is the date of realization of export proceeds. In support of his submission, he relied upon the following authorities:
i. CCE vs. Hyundai Motor India Engineering Pvt. Ltd.: 2015 (39) STR 984 (AP) ii. Hyundai Motor India Engineering Pvt. Ltd. vs. CCE: 2015 (39) STR 1019 (Tri.-Bang.) iii. CCE, Pune vs. Eaton Industries P. Ltd.: 2011 (22) STR 223 (Tri.-Mumbai) iv. M/s. Indago vs. CCE: 2016-TIOL-1020-CESTAT-MUM.
v. Bechtel India Pvt. Ltd. vs. CCE: 2014 (34) STR 437 (Tri.-Del.) vi. CST, Goa vs. Ratio Pharma India Pvt. Ltd.: 2015 (39) STR 31 (Tri.-LB)
5. On the other hand, the learned CA appearing on behalf of the respondent-assessee fairly conceded the law which has been laid down in the cases cited supra.
6. After considering the submissions of both the parties, I find that as per Rule 6 of Service Tax Rules, 1994, it is provided that the service tax shall be paid to the credit of the Central Government (i) by 6th day of the month, if the duty is deposited electronically through internet banking; and (ii)by the 5th day of the month, in any other case, immediately following the calendar month in which the payments are received towards the value of taxable services. Further, I find that the decision of High Court in CCE vs. GTN Engineering Ltd.: 2012 (281) ELT 185 is not applicable in the present case as the said decision relates to export of goods and the present case is that of export of services. These claims have been filed under Rule 5 of CCR which reads as under:
Rule 5.Refund of CENVAT credit. -
Where any input or input service is used in the manufacture of final product which is cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate product cleared for export, or used in providing output service which is exported, the CENVAT credit in respect of the input or input service so used shall be allowed to be utilized by the manufacturer or provider of output service towards payment of,
(i) duty of excise on any final product cleared for home consumption or for export on payment of duty; or
(ii) service tax on output service, and where for any reason such adjustment is not possible, the manufacturer or the provider of output service shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by notification:
Provided that no refund of credit shall be allowed if the manufacturer or provider of output service avails of drawback allowed under the Customs and Central Excise Duties Drawback Rules, 1995, or claims rebate of duty under the Central Excise Rules, 2002, in respect of such duty; or claims rebate of service tax under the Export of Service Rules, 2005 in respect of such tax.
Provided further that no credit of the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act shall be utilized for payment of service tax on any output service.
Explanation: For the purposes of this rule, the words "output service which is exported" means the output service exported in accordance with the Export of Services Rules, 2005.
Condition, safeguards and limitation have been prescribed under Notification 5/2006 dated 14.3.2006 relevant extract of which are reproduced below:-
In exercise of the powers conferred by Rule 5 of the CENVAT Credit Rules, 2004 (hereinafter referred to as the said rules) and in supersession of the Notification of the Government of India in the Ministry of Finance (Department of Revenue) No.11/2002-Central Excise (N.T.), dated 1st March, 2002, published in the Gazette of India Extraordinary, vide number G.S.R. 150