Custom, Excise & Service Tax Tribunal
C.C.E., Kanpur vs New Decent Footwear Industries on 7 July, 2015
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, CIRCUIT BENCH AT ALLAHABAD Date of hearing/decision: 7.7.2015 Service Tax Appeal No.207 of 2010 Arising out of the order in appeal No.222-ST/APPL/KNP/09 dated 4.9.2009 passed by the Commissioner (Appeals), Customs, Central Excise & Service Tax, Kanpur. For approval and signature: Honble Mr. Justice G. Raghuram, President Honble Mr. H.K. Thakur, Technical Member 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? C.C.E., Kanpur . Appellant Vs. New Decent Footwear Industries .. Respondent
Appearance:
Present Shri Govind Dixit, A.R. for the Appellant/Revenue None for the respondent/assessee Coram: Honble Mr. Justice G. Raghuram, President Honble Mr. H.K. Thakur, Technical Member Final Order No. 52169/2015 Per Justice G. Raghuram:
Revenue is the appellant. Heard the ld. A.R. representing Revenue. Notice intimating hearing of this 2010 appeal was dispatched to the respondent-assessee on 1r5.6.2015. When the appeal is taken up, there is however no representation on behalf of the respondent. Hence the appeal is disposed of ex- parte the respondent.
2. The assessee is an exporter of goods and pays service tax on several specified services used for export of goods. The assessee filed a refund claim for Rs.3,85,77/- on 30.12.2008 under the Notification No.41/2007-ST dated 6.10.2007 claiming refund of the service tax paid by it on various specified services received and claimed to have been used for export of goods, for the quarter ending March, 008, May, 2008 and September, 2008.
3. The refund claim was scrutinised and prima facie seen to be inconsistent with the mandatory conditions specified in Notification No.41/2007-ST. Therefore, a show cause notice dated 3.2.1989 was issued proposing to disallow the refund claimed.
4. After a due process, the Assistant Commissioner of Central Excise and Service Tax, Agra, by the order dated 28.1.2010 rejected the refund claim for the several reasons recorded therein.
5. Aggrieved, the assessee preferred an appeal which was allowed by the Commissioner (Appeals), Central Excise, Kanpur vide order dated 4.9.2009. Inter alia, the ld. Appellate Commissioner allowed assessees claim for refund on the commission paid by the assessee to foreign commission agents which activity had suffered service tax under Business Auxiliary Service (BAS). These services were used for export of goods by the assessee. The appellate Commissioner recorded that since it is established that the assessee had paid service tax, denying the benefit of Notification is unjustified; and that the appellant being exporter was earning foreign exchange for the Nation and deserves to be rewarded by giving benefit of promotional schemes introduced by the Government from time to time. The Appellate Commissioner also recorded that evidence like mentioning the rate of commission on the shipping bills, paying the amount to the commission agent stands proved by producing bank advice as evidence and reflecting the same in books of account which shows that commission was paid and service tax also remitted on such payments.
6. The order by the Review Commissioners and the singular ground of appeal before us by Revenue is predicated on the sole grievance that the assessee paid service tax, on 3% of the FOB value of exported goods and refund granted by the appellate Commissioner is thus unsustainable, being contrary to the terms of Notification No.41/2007-ST.
7. Notification No.41/207-ST authorises refund of service tax paid on the value of inputs for goods exported subject to ceiling of 2% on the FOB value, in respect of BAS. Review Commissioners as well as sole ground of appeal by Revenue proceeds on the premise that the assessee had paid service tax on 3% of the FOB value of export goods (in excess of ceiling limit prescribed in Notification NO.41/2007-ST). Neither in the show cause notice, the primary adjudication order, the impugned order of the ld. Appellate Commissioner nor in the order of the Review Commissioner or even the memorandum of appeal is there brought out a scintilla of material/evidence/documentary substantiation for the factual assertion (recorded for the first time in this appeal) to support Revenues assertion that assessee had paid service tax on 3% of the FOB value of exported goods. This factual assertion in the grounds of appeal is unsubstantiated by any probative material which enables a finding of fact to be recorded by the Tribunal.
8. For the aforesaid reasons and in the aforesaid circumstances, this appeal by Revenue is without merits and is accordingly dismissed. In the circumstances without costs.andl (Justice G. Raghuram) President (H.K. Thakur) Technical Member scd/ 1