Custom, Excise & Service Tax Tribunal
Consortium Of Sree Meil Volgo vs Commissioner Of Central Excise, ... on 2 September, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order . 21626-21627 / 2014 Appeal(s) Involved: ST/20583/2014-DB, ST/21569/2014-DB [Arising out of HYD-EXCUS-002-APP-159-13-14 dated 23/12/2013 passed by Commissioner of Central Excise and Service Tax , HYDERABAD-II( Appeal) ] [Arising out of HYD-EXCUS-002-APP-020-13-14 dated 28/02/2014 passed by Commisioner Of Central Excise,Customs and Service Tax , HYDERABAD-II ] Consortium Of Sree Meil Volgo G-106, Keerthi Apartments, Yellareddyguda, HYDERABAD - 500073 AP Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax Hyderabad-ii L.B STADIUM ROAD, BASHEERBAGH, HYDERABAD, - 500004 ANDHRA PRADESH Respondent(s)
Appearance:
Shri B. Venugopal, Advocate SWAMY ASSOCIATES G-8, FORTUNA ICON APARTMENTS, JODIDHAR ASWATHAPPA FARM, BEHIND NAGARJUNA, SAHAKAR NAGAR, BANGALORE - 560092 KARANATAKA For the Appellant Shri N. Jagdish, Superintendent(AR) For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER Date of Hearing: 02/09/2014 Date of Decision: 02/09/2014 Order Per : B.S.V.MURTHY The issues involved, period of dispute etc. in chronological order are reproduced below in respect of both the appeals:-
Item Appeal No. ST/20583/2014 ST/21569/2014 Period of dispute July 2012 to Sept. 2012 Oct. 2012 to March 2013 Date of SCN 10/09/2013 12/11/2013 Date of OIO 07/10/2013 24/12/2013 Date of OIA 23/12/2013 28/02/2013 Amount of refund Rs.3,10,28,428/-
Rs.10,24,78,828/-
2. The issue involved in both the cases is same and therefore chronological events as narrated in respect of appeal No.ST/21569/2014 are reproduced as submitted by the appellant:-
Date Particulars The Appellant is providing service under the category of Works Contract Service falling under Section 65 (105) (zzzza) of the Finance Act, 1994. 20.6.2012 The concept of partial reverse charge has been brought into force vide Notification No. 30/2012-ST. In terms of which the Service provider has to pay a portion of the Service Tax, i.e., 50% of the total value of the service. 1.7.2012 New Rule 5B, came into force vide Notification No. 28/2012-CE (NT), dated 20.6.2012, which reads as follows :
Refund of Cenvat Credit to service providers providing services taxed on reverse charge basis : - A provider of service providing services notified under sub-section (2) of Section 68 of the Finance Act, and being unable to utilize the Cenvat Credit availed on inputs and input services for payment of service tax on such output services, shall be allowed refund of such unutilized Cenvat Credit subject to procedure, safeguards, conditions and limitations, as may be specified by the Board by Notification in the Official Gazette. 15.7.2013 Based on Rule 5B, the Appellant filed a refund claim as they were not in a position to utilize the Cenvat credit availed on input services for payment of Service tax on output services. 10.9.2013 Show Cause Notice C. No. IV/16/134/2013-ST (II Tech-Div) was issued by the Asst. Commissioner of Service Tax, Hyderabad-II Commissionerate, proposing to reject the refund claim, on the grounds that the claim is premature. 21.9.2013 The Appellant filed a reply to the Show Cause Notice 7.10.2013 Order-in-Original No. 135/2013 (ST-R) passed by the Asst. Commissioner of Service Tax, Hyderabad II Commissionerate, rejecting the refund claim, basically on the ground that the said claim is premature, in s much as no notification has been issued under Rule 5B 25.11.2013 Appeal filed before the Commissioner of Central Excise (Appeals), Hyderabad, against the OIO dtd.. 7.10.2013 23.12.2013 Order-in-Appeal No. 159/2013 (H-II) ST, passed by the Commissioner (Appeals-II), disallowing the Appeal filed by the Appellants on the grounds that * the refund under Rule 5B is available only to those Service providers, taxed on full reverse charge basis and not on partial reverse charge basis * No notification under Rule 5B is in force.
03.03.2014 Notification No. 12/2014-CE (NT) was issued under Rule 5B of CCR, 2004 setting out the procedure, safeguards, conditions and limitations for granting refund under the said Rule
3. After hearing both sides and considering the submissions, it is noticed that when the impugned orders were passed, the Notification No.12/2014-CE(NT) dt. 03/03/2014 was not brought to their notice/ not available. The notification itself provides that refund claims can be filed upto 30/06/2014. Therefore it is necessary that this notification is taken note of and the applicability is examined by the lower authorities. Accordingly without expressing any opinion of the aspects of the case, the impugned orders are set aside and the matters are remanded to the original adjudicating authority for fresh adjudication in accordance with law. (Operative portion of the order pronounced in open court) S.K. MOHANTY JUDICIAL MEMBER B.S.V.MURTHY TECHNICAL MEMBER Raja.
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