Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, ... vs M/S. Jindal Steel & Power Ltd on 23 July, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
EAST ZONAL BENCH: KOLKATA
1-2) STAY PETITION NOs.ST/S/1194 & 1203/2012
AND
3-4) SERVICE TAX APPEAL NOs.ST/A/539 & 540/2012
(ARISING OUT OF ORDER-IN-APPEAL NO.56-57/ST/BBSR-II/2012 DATED 14.09.2012 PASSED BY COMMISSIONER (APPEALS), CENTRAL EXCISE, CUSTOMS & SERVICE TAX, BHUBANESWAR)
FOR APPROVAL AND SIGNATURES OF
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER
DR. I.P.LAL, HONBLE 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?
2. Whether it should be released under Rule 27 of the :
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?
COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX, BHUBANESWAR-II
APPLICANT/APPELLANT COMMISSIONER
VERSUS
M/S. JINDAL STEEL & POWER LTD.
...RESPONDENT (S)
APPEARANCE:
SHRI ANIRUDDHA ROY, A.R. (SUPDT.) FOR THE REVENUE. SHRI D.K.MOHANTY, ADVOCATE ASSISTED BY SHRI BHAGBAN PANDA, ADVOCATE FOR THE APPLICANT(S)/APPELLANT(S);
CORAM:
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER DR. I.P.LAL, HONBLE TECHNICAL MEMBER Date of Hearing & Decision:23.07.2014 ORDER NO.FO/A/75540-75541/2014 Per Dr. D.M.Misra These two Applications are filed by the Revenue, seeking stay of operation of the impugned Order-in-Appeal No.56-57/ST/BBSR-II/2012 dated 14.09.2012 passed by Commissioner (Appeals), Central Excise, Customs & Service Tax, Bhubaneswar.
2. Ld. AR for the Revenue submits that the ld. Commissioner (Appeals) by the aforesaid Order, had remanded the matter to the lower authority for verification of the documents produced before him in terms of the observation made in the said Order. He has further submitted that the Respondents are not eligible to the refund on the ground that they had not complied with the condition of Notification No.41/2007-ST dated 06.10.2007, as amended by Notification No.31/08-ST dated 19.02.2008. He submits that precisely, the Condition Nos.(i) and (iii) of the said Notification had not been complied with, at the time of removal of the goods from the mines for export, so as to be eligible for refund. Accordingly, the Revenue had come in appeal against the said Order of the ld. Commissioner (Appeals).
3. The ld. Advocate for the Respondent, on the other hand, submits that even though initially, they could not show compliance with the said conditions at the time of removal of the goods or during the adjudication proceeding, but subsequently they had placed all the evidences/documents before the ld. Commissioner (Appeals), who after taking note of the said documents, remanded the issue to the Adjudicating Authority for verification of the documents. He has further submitted that subsequent submission of the documents would not disentitle them from the benefit of the Notification in question, in view of the decisions of this Tribunal in number of cases, namely, Jumbo Mining Ltd. vs. CCE, Hyderabad, 2012(26)STR 525(Tri.-Bang) and Khatau Narbheram & Company vs. CCE, Cus. & ST, BBSR-II, vide Order No.A-118/KOL/2012 dated 17.07.2012. He prays that the matter be remanded to the Adjudicating Authority for verification of the documents, as directed by the ld. Commissioner (Appeals).
4. Ld. AR for the Revenue has no objection in remanding the case to the Adjudicating Authority for verification of the documents, as directed by the ld. Commissioner (Appeals).
5. After hearing both sides for some time, we find that the Appeals itself could be disposed off at this stage. Hence, instead of deciding only the Stay Applications filed by the Revenue, the Appeals are taken up for disposal, with the consent of both sides.
6. We find that the common issue involved in both these Appeals relates to the eligibility of refund of service tax paid on the services, utilized by the Appellant in relation to export of goods. The refund was denied to them on the ground that the documents, as required under the relevant Notification, were not produced at the time of claim for refund or before the Adjudicating Authority. Later on, the same were produced before the ld. Commissioner (Appeals), who after appreciating the relevancy of the documents in the context of the Notifications No.41/2007-ST dated 06.10.2007 as amended, remanded the matter to the Adjudicating Authority for verification of the claim. Against the said Order of the ld. Commissioner (Appeals), the Revenue has come in appeal before this Forum, stating that subsequent compliance/submission of the documents, cannot be construed as compliance with the conditions of the Notification in question. We find that this Tribunal in the cases of Jumbo Mining Ltd.(supra) and Khatau Narbheram & Company (supra), has consistently held that if the relevant documents are produced subsequently, the assesse-claimant cannot be denied the benefit of Notification No.41/2007-ST dated 06.10.2007, as amended by Notification No.31/08-ST dated 19.02.2008. In view of the said decisions, we find merit in the Order of the ld. Commissioner (Appeals) and as agreed by both sides, remand the matters to the Adjudicating Authority for verification of the documents in relation to the claim of refund of service tax paid on fulfillment of the conditions of the said Notifications as per the observation of the ld. Commissioner (Appeals). Needless to mention, a reasonable opportunity of hearing be granted to the Appellant. Revenues Appeals are disposed of on above terms. Stay Petitions also stand disposed off.
(Pronounced & dictated in the open court.)
SD/-22.09.14 SD/-17.09.2014
(I.P.LAL) (D.M.MISRA)
MEMBER (TECHNICAL) MEMBER (JUDICIAL)
DUTTA/
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ST/A/539 & 540/2012
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