Custom, Excise & Service Tax Tribunal
M/S Torus Business Solutions Pvt. Ltd vs Cst, Gurgaon on 31 July, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SCO 147-148, SECTOR 17-C, CHANDIGARH-160017 SINGLE BENCH COURT NO.1 Appeal No. ST/53085/2016 [Arising out of the Order-in-Appeal No. 26/ST/APPEAL/II/SM/GGN/2014-15 dated 17.02.2015 passed by the CCE (Appeals), Delhi-III, Gurgaon] Date of Hearing/Decision: 31.07.2017 For Approval & signature: Honble Mr. Ashok Jindal, Member (Judicial) M/s Torus Business Solutions Pvt. Ltd. Appellant Vs. CST, Gurgaon Respondent
________________________________________________ Appearance None - for the appellant Shri. Tarun Kumar, AR- for the respondent CORAM: Honble Mr. Ashok Jindal, Member (Judicial) FINAL ORDER NO: 61456/2017 Per Ashok Jindal:
The appellant is in appeal against the impugned order wherein the refund claim filed under Rule 5 of the Cenvat Credit Rules, 2004 was denied as time barred and on the ground that the parking charges paid by the appellant have no nexus with the output service.
2. The brief facts of the case are that the appellant filed refund claim online within time but physically the refund claim was filed after one year of the date of export for refund of the cenvat credit availed on parking charges paid by them during the period 2010-2012. The Revenue is of the view that the refund claim was physically filed beyond the period of one year, therefore, they are not entitled to refund claim, hence rejected. The refund claim also sought to be denied on the ground that the parking charges had no relevance to the output services provided by the appellant, therefore, there is no nexus with the output service. Consequently, the parking charges are not inputs service as per Rule 2(l) of the Cenvat Credit Rules, 2004. Therefore, the refund claim on that ground is also denied. Aggrieved from the said order, the appellant is before me.
3. Despite notice. None appeared on behalf of the appellant nor any request for adjournment has been received. On perusal of the records, it is found that the matter is listed for several times before the bench but on all the occasions none appeared on behalf of the appellant nor any request for adjournment has been received. On the last date of hearing, the appellant was given the last chance to appear before this Tribunal but today, the appellant failed to appear before this Tribunal. Therefore, the appeal is taken up for final disposal.
4. The Ld. AR reiterated the finding in the impugned order and submits that physically refund claim has not been filed within one year. The authorities below has rightly rejected the refund claim. He further submitted that the cenvat credit on parking charges has no nexus with the output services, therefore, they are not entitled to refund claim. Consequently, the refund is rejected.
5. Heard the ld. AR and perused the records.
6. On perusal of the records, I find that the refund claim filed by the appellant has been rejected on two grounds:
(A) On limitation (B) The parking charges are not the input services as per Rule 2(l) of the Cenvat Credit Rules, 2004. (A) On limitation:
I find that the appellant has filed the refund claim online within time and as all the documents could not be filed by the appellant online, therefore, the appellant filed physically refund claim although after one year. In that circumstance, it cannot be said that the appellant has not filed refund claim in time. The date of filing of the refund claims online should be taken into consideration to determine whether a particular refund claim has been filed within the time as specified in the Notification No. 5/2006-CE (NT) dated 14.03.2006, therefore, the refund claim cannot be denied to the appellant. I hold that the refund claim filed in time, accordingly, the refund claim is admissible.
(B) Denial of refund on parking charges:
I find that while entertaining the refund claim, the cenvat credit availed by the appellant was sought to be denied and while taking cenvat credit it was not objected by the Revenue that the parking charges is not a input service in terms of Rule 2(l) of the Cenvat Credit Rules, 2004. As, the availment of cenvat credit has not been denied by the authorities below, the refund claim of the same cannot be denied on that ground that the said service is not the input service as per Rule 2(l) of the Cenvat Credit Rules, 2004. At this time of filing the refund claim, the availment of cenvat credit cannot be challenged. Accordingly, I hold that the appellant is entitled for refund claim on parking charges as claimed. In result, I do not fine any merit in the impugned order for rejection of refund claim. Consequently, the impugned order is set aside qua rejecting the refund claim. Consequently, the appeal is allowed with consequently relief.
(Dictated and pronounced in the open court) Ashok Jindal Member (Judicial) rt 1 ST/53085/2016