Custom, Excise & Service Tax Tribunal
Sai Advantium Pharma Ltd vs Commissioner Of Customs ,Central ... on 23 March, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: ST/1108/2012-DB, ST/707/2011-DB, ST/708/2011-DB, ST/709/2011-DB, ST/710/2011-DB, ST/711/2011-DB, ST/712/2011-DB, ST/713/2011-DB, ST/714/2011-DB, ST/715/2011-DB, ST/716/2011-DB [Arising out of Order-in-Appeal No. 05-2012 dated 25/01/2012 passed by CC,CE&ST(Appeals-II), Hyderabad] [Arising out of Order-in-Appeal No. 29-2010 dated 29/11/2010 passed by CC,CE&ST(Appeals-II), Hyderabad, ] [Arising out of Order-in-Appeal No. 30-2010 dated 29/11/2010 passed by CC,CE&ST(Appeals-II), Hyderabad , ] [Arising out of Order-in-Appeal No. 31-2010 dated 29/11/2010 passed by CC,CE&ST(Appeals-II), Hyderabad, ] [Arising out of Order-in-Appeal No. 32-2010 dated 29/11/2010 passed by CC,CE&ST(Appeals-II), Hyderabad, ] [Arising out of Order-in-Appeal No. 33-2010 dated 29/11/2010 passed by CC,CE&ST(Appeals-II), Hyderabad, ] [Arising out of Order-in-Appeal No. 34-2010 dated 29/11/2010 passed by CC,CE&ST(Appeals-II), Hyderabad, ] [Arising out of Order-in-Appeal No. 35-2010 dated 29/11/2010 passed by CC,CE&ST(Appeals-II), Hyderabad, ] [Arising out of Order-in-Appeal No. 36-2010 dated 29/11/2010 passed by CC,CE&ST(Appeals-II), Hyderabad, ] [Arising out of Order-in-Appeal No. 37-2010 dated 29/11/2010 passed by CC,CE&ST(Appeals-II), Hyderabad, ] [Arising out of Order-in-Appeal No. 38-2010 dated 29/11/2010 passed by CC,CE&ST(Appeals-II), Hyderabad, ] For approval and signature: HON'BLE SHRI ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI 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? Yes 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 SAI ADVANTIUM PHARMA LTD PLOT NO.DS-7 AND LAB NO.10, ICICI KNOWLEDGE PARK, TURKAPALLY VILLAGE, SHAMEERPET MANDAL, R.R. DIST HYD AP Appellant(s) Versus Commissioner of Customs ,Central Excise and Service Tax HYDERABAD-IV NULL POSNETT BHAWAN, TILAK ROAD, RAMKOTI, HYDERABAD, - 500001 ANDHRA PRADESH Respondent(s)
Commissioner of Central Excise,Customs And Service Tax HYDERABAD-III NULL OPP LB STADIUM ROAD, BASHEERBAGH, HYDERABAD, - 500004 ANDHRA PRADESH Respondent(s) Appearance:
Shri L.S. Karthikeyan, Advocate For the Appellant Shri Mohd. Yusuf, Addl. Commissioner(AR) For the Respondent Date of Hearing: 23/03/2015 Date of Decision: 23/03/2015 CORAM:
HON'BLE SHRI ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER Final Order No. 20824-20834 / 2015 Per : B.S.V. MURTHY All the 10 appeals, ST/707-716/2011, have been filed challenging a common OIA No.26-38/2010 dt. 29/11/2010. The refund claims have been filed for the period from April 2009 to March 2010. Appeal No.ST/1108/2012 relates to the refund claim for the period from April 2009 to September 2010 and is against OIA No.5/2012 dt. 25/1/2012.
2. In all the cases, the refunds have been claimed on the ground that appellants could not utilize the accumulated CENVAT credit under Notification No.5/2006-CE(NT) read with Rule 5 of CENVAT Credit Rules 2004. The common grounds taken for rejecting the refund claims are (a) credit could not have been taken at all;(b) in respect of certain refund claims, input services were received earlier and used for exported services and credit was taken much later i.e. after the export was over. Therefore there is no nexus between the input services and exporter output service.
3. The learned counsel on behalf of the appellants relied upon the decision of this Tribunal in the Interim Order No.79-152/2014 dt. 29/08/2014 in the case of Apotex Research Pvt. Ltd.& others Vs. CCE as regards nexus and submitted that this issue can be considered by the original authority in the light of the decision referred to and also other decisions that have been considered by the Tribunal while passing the order and also other decisions that may be cited. We find ourselves in agreement.
4. As regards the second issue that input services were received earlier used for providing exported service and credit was taken later and therefore credit is not admissible, we are unable to agree with this view. The learned AR drew our attention to the detailed discussion that Commissioner has made in the impugned order and submitted that for granting refund of CENVAT credit taken, the refund of credit claimed should have been used in the service exported.
5. We find that according to the provisions of CENVAT Credit Rules during the relevant time, there was no time prescribed for taking the credit. In the absence of time limit prescribed, there are several decisions of the Tribunal that credit could not have been denied. Once credit was admissible and unless there was no nexus between the output service exported and input services were used when credit was taken, the refund of the same also could not have been denied since the substantive ground of taking CENVAT credit in the first place being correct would lead to the obvious conclusion that ultimately if it gets accumulated the refund has to be sanctioned. Notification No.5/2006-CE(NT) is issued to provide safeguards and conditions to implement the sanction of refund envisaged under Rule 5 and not to defeat the purpose of whole CENVAT credit scheme. Therefore once credit is admissible and taken and not held to be inadmissible and if it gets accumulated, the conditions in Rule 5 can be said to have been fulfilled. It cannot be said that the input service has not been used for providing output service. The only question is that the credit was taken subsequently and therefore it had already been used when credit was taken. There is also a Boards instruction saying that the CENVAT credit taken forms a pool and can be used for any purpose once credit is admissible. Moreover the reliance of the learned counsel on Circular No.120/01/2010 dt. 19/01/2010 to submit that there cannot be different yardsticks for establishing nexus for taking credit and refund of credit is correct. Moreover as submitted, Notification No.7/2010 amended Notification No.5/2006 that retrospective effect from 14/03/2006 to provide that input/input service used for providing output services which have been exported instead of used in providing output service also supports the claim of the appellant. Moreover according to Notification No.7/2010, according to the learned counsel, it is provided that credit of input services need not be taken during the period for which refund has been claimed. The above discussion would show that credit is admissible and refund is also admissible. Moreover in the Interim Order referred to hereinabove in para 6.1., this issue was considered and we find that is also relevant.
6. In view of the above discussion, the appeals are allowed and the matters are remanded to the original adjudicating authority to decide the admissibility of the refunds claimed in accordance with the decision in the Interim Order referred to hereinabove and other decisions that may be cited and relied upon by the appellants when they are given an opportunity to represent their case if the entire refund or a portion of the refund is considered inadmissible for any reason by the original adjudicating authority.
(Order dictated in court) B.S.V.MURTHY TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER Raja..
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