Custom, Excise & Service Tax Tribunal
Intergra Software Services Pvt Ltd vs Commissioner Of Gst&Amp;Central ... on 13 May, 2019
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CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
CHENNAI
Regional Bench - Court No. I
Service Tax Appeal No. 42538 of 2018
(Arising out of Order-in-Appeal No. 170 & 171/2018-TRY (CUS) dated
07.09.2018 passed by the Commissioner of G.S.T. & Central Excise (Appeals),
Coimbatore @ Tiruchirapalli, No 1., Williams Road, Cantonment, Tiruchirapalli -
620 001)
M/s. Integra Software Services Pvt. Ltd., : Appellant
100 Feet Road (ECR), Pakkumudiyanpet,
Puducherry - 605 008
VERSUS
The Commissioner of G.S.T. & Central Excise, : Respondent
Puducherry Commissionerate, No. 1, Goubert Avenue, Beach Road, Puducherry - 605 001 WITH Service Tax Appeal No. 42539 of 2018 (Arising out of Order-in-Appeal No. 170 & 171/2018-TRY (CUS) dated 07.09.2018 passed by the Commissioner of G.S.T. & Central Excise (Appeals), Coimbatore @ Tiruchirapalli, No 1., Williams Road, Cantonment, Tiruchirapalli - 620 001) M/s. Integra Software Services Pvt. Ltd., : Appellant 100 Feet Road (ECR), Pakkumudiyanpet, Puducherry - 605 008 VERSUS The Commissioner of G.S.T. & Central Excise, : Respondent Puducherry Commissionerate, No. 1, Goubert Avenue, Beach Road, Puducherry - 605 001 APPEARANCE:
Shri. S. Ramachandran, Consultant for the Appellant Shri. L. Nandakumar, Authorized Representative for the Respondent CORAM:
HON'BLE MR. P. DINESHA, MEMBER (JUDICIAL) FINAL ORDER NOs. 40789-40790 / 2019 2 DATE OF HEARING: 06.03.2019 DATE OF DECISION: 13.05.2019 These appeals are filed by the assessee against the Order-in-Appeal Nos. 170 & 171/2018 dated 07.09.2018.
2. Ld. Consultant Shri. S. Ramachandran appeared on behalf of the assessee and Ld. AR Shri. L. Nandakumar appeared on behalf of the Revenue. It is the case of the appellant that it is a 100% Export Oriented Unit (EOU), is rendering software enabled services in relation to pre-publication and exporting such services out of India.
3.1 Ld. Consultant Shri. S. Ramachandran appearing for the appellant submitted during hearing inter alia that based on the export services, the appellant filed two refund claims under Rule 5 of the CENVAT Credit Rules ('CCR' for short), 2004, out of which the claim relating to the service tax paid by the assessee for Renting of Immovable Property Service provided by its Director in her individual capacity, was rejected being ineligible; that first appeal was filed wherein the rejection was confirmed; that subsequent appeal to this Bench was also rejected; that thereafter, they chose to file refund claim under Section 11B of the Central Excise Act, 1944 which was entertained by the adjudicating authority vide Orders-in-Original Nos. 63 & 64/2017 (R.F.) dated 31.10.2017 by sanctioning the refund; that the Revenue sought for review of the above Orders-in-Original and thereafter, filed appeals before the Commissioner (Appeals), who vide impugned orders has allowed the Revenue's appeals, etc. 3.2 He also drew my attention to the orders of this Bench in the appellant's own cases, in:
(i) Final Order Nos. 40623-40624/2017 dated 13.04.2017; and
(ii) Final Order No. 41548/2017 dated 10.08.2017;
and relied on the subsequent Final Order No. 41548/2017 dated 10.08.2017 to plead that the rejection of refund not being proper, is required to be set aside.
34. Per contra, Ld. AR Shri. L. Nandakumar appearing for the respondent supported the findings of the first appellate authority. He also submitted that admittedly, the first refund claim was under Rule 5 of the CCR, 2004 because of the export services of the appellant and hence, Section 11B had absolutely no role. The adjudicating authority having thus entertained the claim under Section 11B was clearly wrong, which has been rightly reversed by the first appellate authority. He thus pleaded for sustenance of the impugned order.
5. I have considered the rival contentions, gone through the impugned orders and also gone through the earlier orders of this Bench.
6. The first order of this Bench came to be passed on 13.04.2017. This Bench after considering the plea of the Ld. Consultant Shri. S. Ramachandran that the payment of service tax in respect of Renting of Immovable Property was by mistake however, concluded, that the refund could not be claimed under Rule 5 ibid. It is surprising to note as to how the adjudicating authority chose to read conclusion as direction, which was not there, in her order dated 31.10.2017 as to the filing of a separate claim under Section 11B ibid. She has also gone farther, when she concludes that clause (ec) to Explanation B of Section 11B ibid would come to the rescue of the appellant. The appellant consciously filed its application for refund under Rule 5 ibid and even though there were no such directions by this Bench, it impressed upon the adjudicating authority to obtain an order and succeeded. Albeit there were no such directions, when the assessee chose to file refund claim by invoking Section 11B ibid, the authority scrutinizing the above application is expected to verify the same and ensure that the application is in order, meeting the requirements of law in terms of limitation as well.
7. Thus, prima facie I am of the view that clearly the Order-in- Original cannot sustain and has rightly been set aside by the first appellate authority. The appellant taking a cue from the earlier order of this Bench that Rule 5 ibid could not be invoked, chose to file an application under Section 11B ibid. It is intriguing to find that no appeal was filed against the first order of this Bench which rejected the appellant's claim made under Rule 5. However, in the subsequent order of this Bench which has been extensively relied by the appellant, this Bench has concluded that the denial of refund under Rule 5 of the 4 CCR, 2004 was not justified and in any case, even though the appellant was aware of the earlier order of this Bench in its own case dated 13.04.2017, has not placed the order for the benefit of this court and thus, the second order dated 10.08.2017 came to be passed without referring to the earlier order. It is equally surprising to note as to how even the Revenue missed this out.
8. In the light of the above discussions, I am of the view that there is no merit in the appeals and I also do not find any infirmity in the impugned order and consequently, the appeals of the assessee are dismissed.
(Order pronounced in the open court on 13.05.2019) (P. DINESHA) MEMBER (JUDICIAL) Sdd