Custom, Excise & Service Tax Tribunal
M/S. Kaypee Electronics & Associate ... vs Cc, Bangalore on 18 October, 2010
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench Division Bench
Court II
Date of Hearing:18/10/2010
Date of decision:18/10/2010
Appeal No.C/568/09
(Arising out of Order-in-Appeal No.57/2009 dt. 23/6/2009 passed by CC(Appeals), Bangalore)
For approval and signature:
Honble Mr. M.V.Ravindran, Member(Judicial)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether their Lordship wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. Kaypee Electronics & Associate Pvt. Ltd.
..Appellant(s)
Vs.
CC, Bangalore
..Respondent(s)
Appearance , Chartered Accountant for the appellant.
Mr. K.S. Chandrasekar, JDR for the Revenue.
Coram:
Honble Mr. M.V.Ravindran, Member(Judicial) FINAL ORDER No._______________________2010 Per M.V.Ravindran This appeal is filed against the Order-in-Appeal No.57/2009 dt. 23/6/2009.
2. The relevant facts that arise for consideration are that appellants are manufacturers and exporters of coils, inductors and transformers. They are 100% EOU and cleared the finished goods to another 100% EOU. The appellants claimed refund of the unutilized cenvat credit of the service tax paid by them as a recipient of the services as per the provisions of Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No.05/2006-CE(NT) dt. 14/3/2006. The refund claim was rejected by both the lower authorities on the ground that the clearances of manufactured goods to another 100% EOU only amounted to deemed export and not actual physical export and assessee is not entitled to refund of cenvat credit. Hence the appellants are before the Tribunal.
3. Ld. Chartered Accountant appearing on behalf of the appellants draws my attention to the findings of both the lower authorities. It is his submission that as per Rule 5, the clearance of intermediate products for export is also to be considered for the refund of unutilized cenvat credit. He would draw my attention to the certificate given by the purchasers of intermediate products i.e. another 100% EOU, who submit that the goods which were purchased from the appellants were utilized by them for manufacture of finished goods which were finally exported by them. It is his submission that the finished goods which are manufactured by them, are used as intermediate products by another 100% EOU and subsequently exported. It is his submission that the Commissioner (Appeals) for subsequent period in Order-in-Appeal No.58/2010 dt.23/3/2010 in respect of very same appellant and in identical situation has granted refund of the amount of unutilized credit. It is his submission that that order was not there when the adjudicating authority passed the Order-in-Original rejecting the refund claim. On a specific query from the Bench, it is his submission that he is not aware of any appeal filed by the Revenue.
4. Ld. DR reiterates the finding of the ld. Commissioner(Appeals).
5. On careful consideration of the submissions made by both sides, I find that the issue involved in this case is regarding the refund of cenvat credit unutilized by the appellants on the receipt of inputs or input services which were utilized by them for the manufacture of final products, which are cleared by them for export as well as to another 100% EOU. It is not disputed that the finished goods cleared to another 100% EOU are utilized in manufacture of final products which are exported. Be that as it may, I find that provisions of Rule 5 would apply in this case inasmuch as the clearances to another 100% EOU is also considered as clearances for export. The appellants cleared the finished goods to another 100% EOU is cleared under a bond executed by them before the Revenue authorities. Be that as it may, I find that the lower authorities should be given a chance to reconsider the issue in the light of the Order-in-Appeal No.23/3/2010 wherein in an identical situation in the appellants own case, the ld. Commissioner(Appeals) has sanctioned the refund of unutilized credit for the subsequent period which was undisputed before me in that case.
6. In view of the above, both the orders of the lower authorities are set aside and the matter is remanded to the original authority to reconsider the issue afresh after following the principles of natural justice.
(Pronounced and dictated in open court) (M.V. RAVINDRAN) Member (Judicial) Nr 4