Custom, Excise & Service Tax Tribunal
M/S Kolektor Technologies India Pvt. ... vs Cce & St, Delhi on 25 September, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi 110 066.
Date of Hearing : 25.9.2013
Service Tax Appeal No. 59236 of 2013-SM
[Arising out of Order-in-Appeal No. 125/S. Tax/D-II/2013 dated 10.5.2013 passed by the Commissioner (Appeals), Central Excise, New Delhi)
For Approval & signature:
Honble Shri Sahab Singh, 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?
2.
Whether it would 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 Department Authorities?
M/s Kolektor Technologies India Pvt. Ltd. Appellant
Vs.
CCE & ST, Delhi Respondent
Appearance:
Shri Jeevesh Mehta, Advocate - for the appellant Shri Sanjay Jain, A.R. - for the respondent Coram : Honble Mr. Sahab Singh, Member (Technical) F. Order No. 57765/2013 Per Sahab Singh :
This appeal is filed by M/s Kolektor Technologies India Pvt. Ltd. against the order-in-appeal No. 125 dated 10th May 2013.
2. The brief facts of the case are that the appellants are registered with service tax department for providing the taxable service of business auxiliary service. They are exporter of the services and accordingly they filed refund claims under Notification No. 5/2006 dated 14.3.2006 issued under Rule 5 of the Cenvat Credit Rules. After scrutiny of the refund claims, the original authority has rejected their claim amounting to Rs.1,35,893/- for the period October to December 2011 and Rs.8,676/- for the period January to March, 2012 on the ground that the input invoices were not raised in the name of the appellant and the input invoices were dated to the period prior to the claimed period and also the date of payments made to the input service providers were also prior to the claimed period. Against the rejection of the refund claim, the appellants filed an appeal before the Commissioner (Appeals) who vide impugned order has rejected their appeal.
3. Heard both sides.
4. I find that in the present appeal an amount of Rs.1,35,893/- pertains to amount rejected on the ground that the input invoices are dated prior to the period of refund claim and the date of payment made to the input service provider is also prior to the claim of the refund. On this point the appellant relies on the decision of Tribunal in case of CCE Vs. Chamundi Textiles (Silk Mills) Ltd. - 2012 (26) STR 498 (Tri. - Bang.) in which it was held by the Tribunal that refund of credit can be allowed of the past period in subsequent quarters and there is no such bar in the Notification N0. 5/2006. I find that in para 7 of this decision, the Tribunal held as under :-
7. I have carefully considered the case records and the submissions made by both sides. The ground raised to assail the impugned order is that it had allowed refund of accumulated input service credit which did not pertain to the goods exported during the periods for which the claims were made. I find that this aspect has been clarified by CBEC in para 3.3. of Circular No. 120/01/2010-ST dated 19.1.2010, which is reproduced below :
3.3 Quarterly refund claims [para 2(d) above]:
As regards the quarterly filing of refund claims and its applicability, since no bar is provided in the notification, there should not be any objection in allowing refund of credit of the past period in subsequent quarters. It is possible that during certain quarters, there may not be any exports and therefore the exporter does not file any claim. However, he receives inputs/input services during this period. To illustrate, an exporter may avail of Rs.1 crore as input credit in the April June quarter. However, no exports may be made in this quarter, so no refund is claimed. The input credit is thus carried over to the July-September quarter, when exports of Rs.50 lakh and domestic clearances of Rs.25 lakh are made. The exporter should be permitted a refund of Rs.66 lakh (as his export turnover is 66% of the total turnover in the quarter) from the Cenvat credit of Rs.1 crore availed in April-June quarter. The illustration prescribed under para 5 of the Appendix to the notification should be viewed in this light. However, in case of service providers exporting 100% of their services, such disputes should not arise and refund of CENVAT credit, irrespective of when he has taken the credit, should be granted if otherwise in order. Such exporters may be asked to file a declaration to the effect that they are exporting 100% of their services, and, only if it is noticed subsequently that the exporter had provided services domestically, the proportional refund to such extent can be demanded from him.
5. In this case the Tribunal relying on the Boards Circular dated 19.1.2010 has held that there is no bar in allowing the refund of the Cenvat credit pertaining to the period prior to refund period claimed by the appellant. Accordingly, following the said decision, I find that the finding of the Commissioner (Appeals) are not sustainable and accordingly set aside.
6. I find that amount of Rs.8,676/- has been rejected by the lower authority in respect of invoices which are not in the name of the appellant. There is no dispute about the fact that these invoices are not in the name of the appellant and in fact are in the name of the M/s Niranjan Seshadri. I find as these invoices are not in the name of the appellant unit, the lower authority has rightly denied the refund in respect of the Cenvat credit in respect of these invoices. Accordingly, this part of the redund claim has rightly been rejected by the lower authority. The finding of the Commissioner (Appeals) on this point is upheld. Appeal is partly allowed as discussed above.
(Dictated & pronounced in open Court) (Sahab Singh) Member (Technical) RM 1