Custom, Excise & Service Tax Tribunal
M/S. Dishman Pharmaceuticals & ... vs Commissioner Of Central Excise & S.T., ... on 5 June, 2015
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad Appeal No. : ST/13111-13113/2014 (Arising out of OIA-AHM-EXCUS-002-APP-032-034-14-15 dated 20.05.2014, Passed by Commissioner (Appeals) Central Excise, & S.T., Ahmedabad ) M/s. Dishman Pharmaceuticals & Chemicals Limited : Appellant (s) VERSUS Commissioner of Central Excise & S.T., Ahmedabad : Respondent (s)
Represented by :
For Appellant (s) : Shri R. Subramanya, Advocate For Respondent (s) : Shri K. Sivakumar, Authorised Representative For approval and signature :
Mr. P.M. Saleem, Honble Member (Technical) 1 Whether Press Reporter 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 CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 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 CORAM :
Mr. P.M. Saleem, Honble Member (Technical) Date of Hearing / Decision : 05.06.2015 ORDER No. A/10743-10745/2015 Dated 05.06.2015 Per : Mr. P.M. Saleem;
These three appeals are filed by the appellants, in respect of three Orders-in-Original on the same issue, disposed of by the Commissioner (Appeals) by a common order against the appeals filed by the Revenue before him.
2. The brief facts of the case are that the appellants are a manufacturer exporters and had filed three refund claims in respect of the service tax paid by them on the services such as C&F Charges, CHA and Sales Commission. The appellants claimed exemption from service tax paid on the services used in the export of goods by way of filing refund claims under Notification No. 41/2007 dated 06.10.2007 as amended. The original adjudicating authority sanctioned all the three refund claims in terms of the provisions under Notification No. 41/2007 dated 06.10.2007 read with Section 11B of the Central Excise Act, 1944. The Commissioner (Appeals) vide the impugned appellate order upheld the Orders-in-Original with respect to service tax refund falling under all the categories claimed accept that pertaining to C&F Charges and Sales Commission (Foreign). On a query from the Bench, learned Counsel and the learned Authorised Representative (ADC) confirmed that Revenue has not filed any appeal against the impugned order of Commissioner (Appeals). Therefore, the said portion of Order-in-Appeal has reached finality to that extent. However, appeals were filed by the appellants against the OIA with regard to rejecting service tax refund falling under the categories of C&F Charges and Sales Commission (foreign). The findings of the Commissioner (Appeals) in this respect is reproduced below:-
5.8. I find that the Revenue has alleged in the appeal shown at Sr. No.1 in the table shown above that the Respondent has not filed any service tax invoices for the service tax refund falling under the categories of C&F charges and Sales Commission (Foreign), therefore benefit of Notification cannot be allowed.
5.9. I hold that without submission of invoice, refund cannot be sanctioned as it is a stipulated requirement under the said Notification. Therefore, the refund claimed on C&F charges and Sales Commission (Foreign) cannot be allowed. Therefore, the appeal of the Revenue is allowed only on this issue
3. The learned Counsel for the appellants submits that they have submitted invoices before the original adjudicating authority. He also points out that no personal hearing was granted to them by the Commissioner (Appeals), which is evident from Para 4 of the OIA. In view of the above, the Counsel pleads for remanding the matter back to the Commissioner (Appeals).
4. Learned Authorised Representative (ADC) for the Revenue has no objection for remanding the issue, as no personal hearing was granted by the Commissioner (Appeals) and since it has to be verified whether the appellants produced the said documents before the original adjudicating authority or not.
5. In view of the above, the matter is remanded to the first appellate authority for getting the documents verified and to issue an appropriate order, after following the principles of natural justice. Needless to say that appellants should be given reasonable opportunity for personal hearing before passing the order.
Appeals are allowed by way of remand.
(Order dictated and pronounced in the Court) (P.M. Saleem) Member (Technical) .KL 4