Custom, Excise & Service Tax Tribunal
M/S. Biocon Ltd vs Commissioner Of Central Excise And ... on 7 November, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 26930 / 2013 Appeal(s) Involved: ST/3015/2011-SM [Arising out of Order in Appeal No. JMJ/29/2011 dt. 24/08/2011 passed by the Commissioner of Central Excise & Service Tax, LTU, Bangalore.] M/s. BIOCON LTD 20th, K.M. HOSUR ROAD, ELECTRONIC CITY, BANGALORE - 560 100. Appellant(s) Versus Commissioner of Central Excise and Service Tax - BANGALORE-LTU 100 FT RING ROAD JSS TOWERS, BANASHANKARI-III STAGE, BANGALORE, KARNATAKA 560085 Respondent(s)
Appearance:
Mr. Alok, Chartered Accountant For the Appellant Ms. Sabrina Cano, Superintendent (AR) For the Respondent CORAM:
SHRI B.S.V. MURTHY, MEMBER TECHNICAL Date of Hearing: 07/11/2013 Date of Decision: 07/11/2013 Order Per : B.S.V. Murthy, Appellant is a SEZ developer as well as SEZ unit. Refund claim filed by them to the extent of Rs.6, 38,221/- in respect of service tax paid on various services utilized in SEZ as well as outside has been rejected on various grounds.
2. Heard both the sides. I propose to discuss the claim issue-wise herein below.
(a) The first ground taken by the Revenue for rejecting the refund claim is that after substituting the provisions of Notification No.15/2009 providing for services without payment of service tax, the refund could not have been claimed. Appellant relies upon the decision of the Tribunal in the case of M/s. Intas Pharma Ltd. reported in 2013-TIOL-1091-CESTAT-AHM. to submit that in such cases also refund can be allowed if exemption has not been claimed. Learned AR is not able to produce any contrary decision. Therefore, it has to be held that on this ground refund claim could not have been rejected.
(b) In respect of certain services, service providers had raised invoices in the address of the appellant which is not the unit which is claiming the refund. However, it was submitted by the learned Chartered Accountant that in this case, the appellant had produced declaration from the service providers stating that services were actually provided to the SEZ unit and invoices were raised by mistake. In view of the fact that appellant has produced this certificate/declaration of the services having been received by the SEZ unit just because the address of the receiver has been mentioned wrongly, in my opinion, credit could not have been denied and benefit of provision of Rule 9(2) of CENVAT Credit Rules, should have been allowed. Since the matter is proposed to be remanded to the original authority, he is requested to verify the correctness of the receipt of services claimed by the appellant and if so, allow the benefit.
(c) In respect of two services, garden maintenance and waste disposal, refund has been denied on the ground that they are not listed in the authorized services issued by the concerned authority of SEZ. The learned Chartered Accountant submitted that actually services rendered by the service providers where these services only but these are not the services which are liable to tax but actually tax has been paid under manpower supply service and transport of goods service. He fairly admits that they have not produced any evidence to this effect. The appellants are advised to produce necessary evidence to show that service tax has been paid under the categories by the service providers and these services are listed in the list of authorized services. If this is done, in my opinion even though invoice mentions the services as garden maintenance and waste disposal, if service tax has been paid under the category of services listed in the services of the SEZ, benefit should be allowed. The learned Chartered Accountant also relies upon the decision of Tribunal in the case of Tata Consultancy Services Ltd. reported in 2012-TIOL-1034-CESTAT-MUM to support the claim that if the service is listed in the list of services, the concerned customs authorities cannot question the eligibility on the ground of nexus or otherwise.
(d) Refund claim made with regard to the invoices issued by BPCL has been rejected on the ground that BPCL is not at all listed for providing services under the category of cargo handling service. It was the appellants claim that BPCL had provided cargo handling service. Learned Chartered Accountant submits that despite their efforts they could not get a certificate issued by BPCL as to under what exact category the service was rendered in respect of supply of diesel made to them and service tax charged thereon. He submits that being a small customer of BPCL and BPCL being a very big organization, they were not able to persuade BPCL to provide information as to under what category service tax has been paid. On this account an amount of approximately Rs.52, 000/- has been rejected. There seems to be genuine difficulty in this regard. Since the tax has been paid for transport of diesel, there may be no harm in allowing the benefit treating the same as service tax paid on transportation of goods which is also in the listed service. However the appellants are advised to continue their efforts to get the information from BPCL as to under what head the tax was paid. Needless to say that department will be at liberty to get the verification done and find out the eligibility otherwise.
(e) A portion of refund claim has been rejected on the ground that services were rendered prior to the issue of Notification. It was submitted by the learned Chartered Accountant that tax was paid subsequent to issue of Notification and therefore, according to him they are eligible. The service in question is provided by C &F Agent and in my opinion, the taxable event has taken place prior to the issue of Notification and therefore, the refund prima facie could not be admissible. Therefore, as far this claim is concerned, the stand taken by the lower authorities is upheld.
(f) In respect of one invoice, the learned Chartered Accountant fairly admits that they have submitted a wrong invoice and they would like to replace it with the proper invoice when the matter goes for reconsideration. This will be considered on merits by the original authority as regards the eligibility of refund on the portion of the replaced invoice.
(g) In respect of two invoices, claim has been rejected on the ground that the invoice does not show the element of service tax. Learned Chartered Accountant submits that these invoices relate to goods transport agency and service tax has been paid by the appellant as a receiver of service under reverse charge mechanism. Therefore the invoice could not have shown the service tax element. This aspect is required to be considered and I find merit in the submissions.
(h) One more common issue on basis of which claims have been rejected is the ground that according to Notification, the claimant of the refund is required to show that he has paid the service tax to the service provider/to the Government as the case may be. The appellant had not provided any evidence. Learned Chartered Accountant submits that initially they did not produce the evidence since bank statements were running into hundreds of pages and they felt it was very voluminous and not required. However, before Commissioner (A) it was produced. However, the Commissioner (A) has not examined the same, since he felt that the appellant was not eligible for refund otherwise. Since, I propose to remand the matter to the original adjudicating authority to examine the refund claim afresh in the light of observations made by me in this order, the bank statements also can be produced before the original adjudicating authority who shall consider the same and satisfy himself that service tax has been paid by the appellant and proceed to consider the refund claim.
3. In the result, the impugned order is set aside and the matter is remanded to the original adjudicating authority for deciding the refund claim in the light of observations made by me hereinabove. (Order dictated and pronounced in open court) (B.S.V. MURTHY) MEMBER TECHNICAL RV 4