Custom, Excise & Service Tax Tribunal
Bny Mellon International Operations ... vs Commissioner Of Central Excise, ... on 13 October, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPEAL Nos. ST/85142, 85301, 85302, 86300/13-Mum (Arising out of Orders-in-Appeal No. P-III/RP/250/2012 dated 7.11.2012, No. P-III/RP/253/2012 dated 19.11.2012, No. P-III/RP/254/2012 dated 20.11.2012 passed by Commissioner of Central Excise (Appeals), Pune-III) For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) and Honble Mr. Raju, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No 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 : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== BNY Mellon International Operations (I) Pvt. Ltd. Appellant Vs. Commissioner of Central Excise, Pune-III Respondent Appearance:
Shri Harish Bindumadhavan, Advocate, for appellant Shri A.B. Kulgod, Assistant Commissioner (AR), for respondent CORAM:
Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. Raju, Member (Technical) Date of Hearing: 3.10.2016 Date of Decision: 13.10.2016 ORDER NO Per: M.V. Ravindran These four appeals are directed against orders-in-appeal No. P-III/RP/250/2012 dated 7.11.2012, No. P-III/RP/253/2012 dated 19.11.2012, No. P-III/RP/254/2012 dated 20.11.2012. Since the appeals and the issue involved are of the same, we dispose of the appeals by a common order.
2. Heard both sides and perused the records.
3. The issue that falls for consideration in these appeals is regarding refund of the cenvat credit that remains unutilized in the cenvat account due to non-submission of certificate of receipt of the payment in convertible foreign currency and whether various input services like service tax paid on insurance services and the service tax paid on food vouchers (meal coupons) are eligible for availing cenvat credit or otherwise.
4. On perusal of the records, we find that the lower authorities have rejected the refund claim of the appellant on the ground that they had not received the amounts towards export of the software in foreign currency but received in Indian currency. On perusal of the certificates given by appellants bank i.e. Deutsche Bank, we find that the appellants bank has clearly recorded that the amount is credited to their account, but the certificate is for foreign inward remittances and vide their letter dated 30.1.2012, they had specifically stated that the entire foreign inward remittance is received in convertible foreign exchange. We also were informed that there is no dispute as to the exports undertaken by the appellant. In our considered view, when there is no dispute as to the exports of the services rendered by the appellant, and no dispute as to the availment of the cenvat credit or eligibility thereof, the only reason for denying cenvat credit that the amounts are not received in convertible foreign currency seems to be irrational way denying the legitimate refund to an assessee. We find that this Bench in the case of CST, Mumbai vs. PMI Organization Centre Pvt. Ltd. 2015-TIOL-2570-CESTAT-MUM, AGM India Advisors Pvt. Ltd. vs. CST, Mumbai-I 2015-TIOL-2775-CESTAT-MUM and Sun-Area Real Estate Pvt. Ltd. vs. CST, Mumbai-I 2015-TIOL-956-CESTAT-MUM, has taken a view that certificates produced of foreign inward remittances, though in Indian rupees, cenvat credit cannot be denied as it is a certificate of foreign inward remittances.
5. As regards the cenvat credit availed on the service tax paid on insurance services, the lower authorities have denied the refund only on the ground that the said insurance also covers the dependents of the employees who are insured. We find force in the submissions made by the learned counsel that in their own case, the Mumbai Tribunal held that such cenvat credit cannot be denied and refund has to be sanctioned. This decision is reported at 2016-TIOL-1851-CESTAT-MUM.
6. As regards the service tax credit of the service tax paid on the meal coupons, we find that the Mumbai Tribunal in the case of Affinity Express India Pvt. Ltd. vs. CCE, Pune-I 2015-TIOL-2441-CESTAT-MUM, has held that such credit is available and refund needs to be sanctioned if the services are exported.
7. In view of the foregoing and the factual matrix, we find that the impugned orders are unsustainable and liable to be set aside and we do so.
8. The impugned orders are set aside and the appeals are allowed.
(Pronounced in Court on 13.10.2016) (Raju) Member (Technical) (M.V. Ravindran) Member (Judicial) tvu 1 4 ST/85142, 85301, 85302, 86300/13