Custom, Excise & Service Tax Tribunal
Dell India Pvt. Ltd vs Commissioner Of Central Excise, ... on 12 May, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: ST/696/2012-SM, ST/697/2012-SM, ST/698/2012-SM, ST/700/2012-SM, ST/701/2012-SM, ST/702/2012-SM, ST/703/2012-SM [Arising out of Orders-in-Appeal No. JMJ/57 to 64/2011 dated 12/12/2011 passed by the Commissioner of Central Excise & Service Tax, LTU, Bangalore] For approval and signature: HON'BLE Mr. B.S.V. MURTHY, TECHNICAL MEMBER 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 Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Dell India Pvt. Ltd. Divyashree Greens, Ground Floor, No.12/1, 12/2A, 13/1A, Challaghatta Village, Varthur Hobli, Bangalore South, Bangalore - 560 071 Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax Bangalore-LTU 100 Ft Ring Road JSS Towers, Banashankari-III Stage, Bangalore 560 085 Karnataka Respondent(s)
Appearance:
Ms Pallavi, Advocate World Trade Centre No. 404-406, 4th Floor, South Wing Brigade Gateway Campus No.26/1, Dr. Rajkumar Road, Malleswaram Bangalore - 560 055 Karnataka For the Appellant Mr. Mohd Yusuf, AR For the Respondent Date of Hearing: 12/05/2015 Date of Decision: 12/05/2015 CORAM:
HON'BLE Mr. B.S.V. MURTHY, TECHNICAL MEMBER Final Order Nos. 21157-21163 / 2015 Per : B.S.V.MURTHY Even though only one appeal has been listed for consideration today, the learned counsel submits that the order-in-appeal deals with 8 claims which were dealt with in 8 orders-in-original. She submits that in all the cases the issues involved are the same. Therefore she submits that the Tribunal may pass a common order rather than hearing each appeal separately. She also submits one more appeal has been listed tomorrow and the remaining 6 are yet to be listed. Out of the remaining 6 appeals, in the case of one appeal, the appeal cannot be considered by the Single Member Bench since the amount involved is more than Rs. 50,00,000/- (Rupees Fifty Lakhs only). She submits that all the remaining 5 appeals may also be taken up today. Learned AR has no objection. Accordingly 7 appeals against the common impugned order-in-appeal as listed above are taken up for consideration and a common order is passed.
2. The appellant is a SEZ unit and filed claim for refund of service tax paid on services which are used in the authorized operation to SEZ unit. The claim was made under Notification No. 9/2009-ST dated 03.03.2009. All the refund claims have been rejected on the ground that the services did not have nexus with the authorized operations and therefore it cannot be said that they were used in the authorized operations. Even though the services in respect of which refund of tax paid has been claimed were in the list of approved services by the Approval Committee, in the absence of use of the same for specified purposes refund cannot be given according to the Revenue. Portion of the claims has also been rejected on the ground that Notification No. 15/2009-ST dated 20.05.2009 has provided unconditional exemption to the services wholly consumed within the SEZ and the service provider can obtain the services without paying the tax. Therefore in respect of the services covered by this Notification, the appellant should not have claimed refund instead should have availed the unconditional exemption provided. The services in respect of which claim has been rejected on the ground that there is no nexus are transportation of goods, courier service, rent-a-cab service and port services.
3. The learned AR reiterates the stand taken by the Revenue in the orders passed by the lower authorities.
4. The learned counsel submitted that the very same issues had been considered by the Tribunal and this Tribunal vide Final Order Nos. 20664-20665/2015 dated 10.03.2015 in respect of the very same appellant had allowed the appeals with consequential relief. The learned AR also agrees that the issues involved were same.
5. While rendering the decision in favour of the appellant in that case, the Tribunal had relied upon the decision in the case of Tata Consultancy Services Ltd. Vs. CCE (LTU), Mumbai [2013 (29) S.T.R. 393 (Tri.-Mumbai)].
6. In the case of Tata Consultancy Services the Tribunal had taken the view that once the Approval Committee which has the Commissioner of Customs also as a Member issues certificate that services received by the assessee are in relation to their authorized operations, subsequently a contradictory decision cannot be taken by the officers of Customs. As regards services wholly consumed within SEZ, even though there is no necessity to discharge service tax liability, it was held that this does not mean that in a case where service tax has been paid, assessee is not eligible for refund.
7. Since the issue is covered by the decision of this Tribunal referred to above, all the appeals are allowed with consequential relief, if any, to the appellants.
(Order pronounced in open court) (B.S.V. MURTHY) TECHNICAL MEMBER iss