Custom, Excise & Service Tax Tribunal
M/S.Vishal Pipes Ltd vs Cce, Noida on 12 August, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI.
Date of hearing/decision:12.08.2013
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Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982.
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Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
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Whether Their Lordships wish to see the fair copy of the Order?
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Whether Order is to be circulated to the Departmental authorities?
Excise Appeal No.E/2244/2011-EX (SM)
(Arising out of Order-in-Appeal No.147/CE/APPL/NOIDA/2011 dated 30.06.2011 passed by the Commissioner of Central Excise (Appeals), Noida)
M/s.Vishal Pipes Ltd. Appellants
Vs.
CCE, Noida Respondent
Appearance: Shri Amar Singh, Representative for the appellant.
Shri P.K. Sharma, AR for the respondent.
Coram : Honble Shri Rakesh Kumar, Member (Technical) Final Order No.57656/2013/Dated:12/08/2013 Per Rakesh Kumar:
The appellant are Merchant Exporter exporting automobile parts (rubber components). They filed a refund claim on 18.6.2010 for an amount of Rs.49,644/- in respect of services of Clearing and Forwarding and courier services used by them in export of the goods during the period from 11.7.2009 to 24.7.2009. This refund claim has been submitted in terms of the provisions of notification no.7/2009-ST dated 7.9.2009 issued under Rule 96 (1) of the Finance Act, 1999, which exempts certain services specified therein were used in the export of the goods out of India. This exemption is subject to certain conditions and following the procedure as prescribed therein. According to para-2 of the notification, the manufacturer exporter, who is registered under Central Excise Rules shall claim the exemption by filing a refund claim of service tax paid on the specified services to the jurisdictional Asstt. Commissioner/Dy. Commissioner in prescribed from A-I. However, Merchant Exporter, who is not so registered as central excise assessee, is required to file a declaration in form A-2 with the jurisdictional Asstt./Dy. Commissioner. In this declaration the Merchant Exporter, besides giving his full name, is required to declare the address of the registered office, Income Tax PAN No., IEC No., details of the bank account, constitution of exporter company whether the proprietorship concern, partnership concern, Private Limited and Private Company and the name, designation and address of the authorized Signatory, along with declaration that he shall maintain the records pertaining to export goods and taxable services used for export of goods and shall make those records available at the declared premises for inspection by Central Excise Officers. On receipt of this declaration, the Asstt./Dy. Commissioner is required to verify the same and, if satisfied, allot a STC Code within seven days. The Merchant Exporter can, thereafter, file the refund claim in form A-I. In this case, the appellant, a merchant exporter, did not file the declaration in A-2 form and as such, no STC code was allotted and he directly filed the refund claim which was rejected by the Asstt. Commissioner and on appeal being filed to the Commissioner (Appeals), the Asstt. Commissioners order was upheld vide order dated 24.5.2011, against which this appeal has been filed.
2. Shri N.K. Sharma, ld. Counsel for the appellant, pleaded that though the appellant did not file the declaration in Form A-2 and as such, no service tax code had been allotted to them, the impugned order is not sustainable inasmuch as the Asstt. Commissioner rejected the refund claim without granting personal hearing and as such, there has been denial of natural justice. He, therefore, pleaded that he has no objection if the matter is remanded to the Original Adjudicating Authority for de novo decision after grant of personal hearing.
3. Shri P.K Sharma, ld. DR, reiterated the findings of the Commissioner (Appeals) in the impugned order and emphasized that before filing of the refund claim, the appellant was required to file declaration in Form A-2 with the jurisdictional Asstt./Dy. Commissioner for allotment of STC code number but the appellant did not file the refund claim and that the appellants claim was not entertainable as they had not filed the mandatory declaration in form A-2 for allotment of STC code number.
4. I have considered the submissions from both the sides and perused the records. In this case, the appellant is Merchant Exporter not registered with the Central Excise under the provisions of Central Excise Act, 1944 or the Rule made thereunder. Therefore, in terms of the provisions of para-2 (c ) and (2)(d), the appellant, before filing of the refund claim under this notification, was required to file declaration in Form A-2 with the jurisdictional Asstt./Dy. Commissioner for allotment of STC code number and thereafter the appellant could file the refund claim in prescribed Form A-I. In this case, the appellant, admittedly, has neither filed the declaration in Form A-2 nor have they been allotted STC code number, which, in my view, is mandatory before filing the refund claim by a merchant manufacturer. In view of this, I hold that the refund claim has been correctly rejected. Though at the stage of original adjudication proceedings, the show cause notice was not issued and hearing was not granted, in my view, since the appellant was not eligible to apply for refund claim without first filing the declaration in form A-2, non-issue of show cause notice and non-grant of personal hearing does not vitiate the proceedings before the Adjudicating Authority. In any case, the appellant had been heard by the Commissioner (Appeals). In view of the above, I do not find any infirmity in the impugned order. The appeal is dismissed.
(order dictated in the open court ) ( Rakesh Kumar ) Member (Technical) Ckp.
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