Custom, Excise & Service Tax Tribunal
M/S. Indago vs Commissioner Of Service Tax, Pune on 7 March, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. ST/85313/2015 (Arising out of Order-in-Appeal No. PUN-EXCUS-003-APP-096-14-15 dated 28.10.2014 passed by the Commissioner (Appeals) Service Tax, Pune) For approval and signature: Honble Shri Ramesh Nair, Member (Judicial) ======================================================
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
======================================================
M/s. Indago
:
Appellant
VS
Commissioner of Service Tax, Pune
:
Respondent
Appearance
Shri Sagar Shah, C.A. with
Shri R. Khairnar Advocate for Appellant
Shri B.Kumar Iyer, Supdt. (A.R) for respondent
CORAM:
Honble Shri Ramesh Nair, Member (Judicial)
Date of hearing : 07/03/2016
Date of pronouncement: 22/03/2016
ORDER NO.
The appeal is directed against Order-in-Appeal No. PUN-EXCUS-003-APP-096-14-15 dt.28.10.2014 passed by Commissioner of Service Tax (Appeals) Pune, whereby the Ld. Commissioner rejected the refund claim of Rs.92,363/-.
2. The fact of the case is that the appellant is engaged in the provision and export of their 100% services they filed a refund claim on 8.5.2013 under Rule 5 of Cenvat Credit Rules, 2004 for the period April 2012 to June 2012 for an amount of Rs. 2,33,981/-. The sanctioning authority i.e. the Assistant Commissioner allowed the refund of Rs.1,41,618/- and rejected the refund of Rs. 92,363/, on the ground: (a) invoices towards Cenvat credit of Rs.2093/- was raised on address which is not registered address. (b) FIRC No. 1380499 for Rs.11,00,335/- was received on 13.4.2012 and refund was filed on 8.5.2013 which is beyond 1 year, hence, proportionate refund in respect of this FIRC was held to be time barred and the refund of Rs.90,270/- on this count was rejected. The appellant being aggrieved by the Order-in-Original No. R/137/STC/PIII/2014 dt. 10.4.2014 filed an appeal before the commissioner (Appeals) who vide the impugned order, rejected the appeal. The Commissioner (Appeals) though accepted that the refund was filed within time on the ground that the period of 1 year be computed from date of FIRC, however, rejected the claim on the ground that the export invoice in respect of the FIRC No. 1380499 was issued in the month of March 2012. Therefore, there is no export in the quarter April 2012 to June 2012, hence the appellant is not entitled for the refund. Being aggrieved by the impugned order the appellant is before me.
3. Shri Sagar Shah, Ld. Chartered Accountant appearing for the appellant submits that in the present case the adjudicating authority has not issued any show cause notice in respect of refund rejected by the Order-in-Original. In the Order-in-Original, the refund was rejected only on the ground of time bar. However, in the impugned order, the Ld. Commissioner (Appeals) categorically held that the time of 1 year should be calculated from quarter ending for which the refund claim was filed accordingly, the refund is not time bar. However, the refund was rejected on different ground which is not the issue arising out of the adjudication order. He submits that in this peculiar nature of proceedings, the Ld. Commissioner (Appeals) should not have gone into any other issue except the issue on which the refund was rejected by the adjudicating authority. He further submits that the FIRC related to the refund of Rs.90,270/- was received by the appellant on 13.4.2012, therefore the export was completed in April 2012. In terms of export of service Rules, therefore the refund of the said amount falls within the quarter April 2012 to June 2012. In view of this fact, the Ld. Commissioner (Appeals) has wrongly held that there is no export during the quarter April, 2012 to June, 2012. He also submits that since the appellant have exported their 100% services, therefore even if it is assumed that the refund falls in some different quarter entire Cenvat Credit availed by them is refundable for this reason also refund could not have been rejected. As regard, the refund of Cenvat Credit amounting to Rs.2093/-, it was rejected by the adjudicating authority for the reason that incorrect address was mentioned on the invoice, however the correct invoice was provided, accordingly the refund is admissible of the said amount.
4. On the other hand, Shri B. Kumar Iyer Ld. Supdt. (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order.
5. I have carefully considered the submissions made by both the sides. I find that the refund under Rule 5 was rejected by the adjudicating authority only on the ground of time bar, for the reason that the FIRC was received on 13.4.2012 and from that date refund claim was filed after 1 year on 8.5.2013, therefore it is time barred. In the appeal of the appellant before the Commissioner (Appeals) the Commissioner (Appeals) categorically held that since the refund has to be filed on quarterly basis, the period of 1 year should be computed from the end of the quarter and held that the refund is not time bar. However, he has rejected the refund on some other issue i.e. by interpreting the amended provision as per Notification No. 18/2012-CE(NT) dated 17.03.2012, according, to which he has held that as per the unamended provision, though the FIRC received in the month of April 2012, the export has to be considered in the month of March 2012, hence there is no export during the quarter from April 2012 to June 2012, on this ground the refund was rejected. In this regard, I find that firstly the adjudicating authority has not issued any show cause notice However, the refund was rejected by way of adjudication order. Therefore, the adjudication order is the foundation of the case. In the adjudication order, the refund was rejected on time bar which was challenged by the appellant, as regard other issue is concerned, even department has not challenged the finding of the Commissioner. In such a situation it was not open for the Commissioner (Appeals) to go into the issues, which is not arising out of the adjudication order. Since, refund was rejected only on time bar and the appellant filed appeal challenging the same, the Commissioner (Appeals) was suppose to decide the appeal of the appellant only on the issue of time bar. As already discussed above, the Commissioner (Appeals) has held that the refund is not time bar. As regard, the refund of Rs.2,093/- the appellant have produced the corrected invoice wherein the correct address of the appellant is appearing. In view of the above position, I find that the refund of the appellant being filed within 1 year from the quarter ending is within time limit, hence they are entitled for the refund. I, therefore modify the impugned order as discussed above. The appeal is allowed in the above terms.
(Pronounced in court on 22/03/2016)
(Ramesh Nair)
Member (Judicial)
SM.
6
Appeal No. ST/85313/2015