Custom, Excise & Service Tax Tribunal
M/S Ge Medical Systems (India) Pvt Ltd vs Commissioner Of Service Tax, Bangalore on 23 September, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL BANGALORE Final Order Nos. 21787 to 21793 / 2014 Appeal(s) Involved: ST/828 to 834/2010-DB [Arising out of the Order-in-Appeals Nos. 35 to 41/2010 dated 19/01/2010 passed by Commissioner of Central Excise (Appeals-II), Bangalore] M/s GE MEDICAL SYSTEMS (INDIA) PVT LTD NO.122, PART-1, EPIP, WHITEFIELD, BANGALORE 560066. Appellant(s) Versus Commissioner of Service Tax, BANGALORE 1ST TO 5TH FLOOR, TTMC BUILDING, Above BMTC BUS STAND, DOMLUR, BANGALORE - 560071 Respondent(s)
Appearance:
Mr. G. Shivadass, Advocate WORLD TRADE CENTRE NO.404-406, 4TH FLOOR, SOUTH WING, BRIGADE GATEWAY CAMPUS NO.26/1, DR. RAJKUMAR ROAD, MALLESWARAM.
BANGALORE - 560 055 For the Appellant Mr. R. Gurunathan, A.R. For the Respondent CORAM:
HON'BLE SHRI B.S.V. MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER ________________________________________ Date of Hearing: 23/09/2014 Date of Decision: 23/09/2014 Per B.S.V. MURTHY Even though appeal Nos. ST/828 to 833/2010 only have been included in the cause list, with consent of both sides, we take up the appeal No. ST/834/2010 also for consideration since issue involved in all the cases is same and a common order is being passed.
2. In all these cases, the issue involved is refund claims filed by the appellants under Rule 5 of Cenvat Credit Rules, 2004. It was submitted that in the case of very same appellant, refund claims filed for subsequent period namely, October to December 2007, Commissioner (Appeals) allowed the appeal filed by the appellant setting aside the Order of the Assistant Commissioner and remanded the matter to decide the issue. The appeal was filed before the Tribunal only on the ground that the Commissioner has no power to remand but merit was not contested. Thereafter, the Tribunal has passed Final Order Nos. 597 to 599/2011 dated 08.9.2011 remanding the matter back to the original authority for re-quantification with a direction to the appellant to produce the C.A.s certificate. It was submitted that in accordance with the Tribunals order, the Assistant Commissioner processed the claim in one of the appeals and allowed a major part of the refund. The rejected amount related to certain input services which are not the subject matters of dispute in the present proceedings. Therefore, it was submitted that the issues involved in these appeals have already attained finality vis-`-vis the other grounds. Therefore, in these cases also matters may be remanded to the original authority so that claims can be processed following the procedure followed in respect of the earlier claims.
3. In addition to above submissions, it was also submitted that the case of the department in each case is covered by decision of this Tribunal in Interim Order Nos. 79 to 152/2014 dated 18.9.2014 in cases of M/s Apotex & Others. The issues in the relevant decision of Interim Order are as under:
(i) Limitation: In respect of 3 refund claims in appeal Nos. ST/834/2010, S/828/2010 and ST/829/2010, limitation is once of the issue and appellants have filed all the refund claims within one year from the date of receiving export proceedings for foreign currency and therefore, the appellants are eligible for refund as per paragraphs 6.15 and 6.16 of above cited Interim Order.
(ii) Classification of output service: Even if output service is not treated as taxable service, as per paragraph 6.2 of Interim Order, refund would be admissible. It is the appellants claim that in these cases, the appellants service is taxable service. As regards nexus, learned counsel submitted that invoices are clear enough.
(iii) Availment on fulfillment of substantive conditions: Learned counsel submitted that they have fulfilled all the conditions.
(iv) Eligibility of refund claim for the period up to March 2006: This issue is covered by paragraph 6.3 of the Interim Order.
(v) As regards nexus between input services and output service, paragraph 6.6 of Interim Order covers the issue.
4. In view of above discussions, the appeals are allowed and matters are remanded to the original adjudicating authority to process the refund claims as per the directions in the earlier remand order as well as following the observations in the above said Interim Order passed by this Tribunal.
(Operative portion of the order has been pronounced in open court)
(S.K. MOHANTY) (B.S.V. MURTHY)
JUDICIAL MEMBER TECHNICAL MEMBER
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