Custom, Excise & Service Tax Tribunal
Commissioner Of Service Tax, Mumbai-Ii vs M/S Sitel India Ltd on 17 February, 2016
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. I APPEAL NO. ST/506, 507/11- Mum (Arising out of Order-in-Appeal No. RBT/198-199/2011 dated 29.04.2011 passed by the Commissioner of Central Excise (Appeals-IV), Mumbai Zone-I.) For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, 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 : No 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? ===================================================== Commissioner of Service Tax, Mumbai-II Appellant Vs. M/s Sitel India Ltd. Respondent Appearance: Shri A.K. Goswami, Addl. Commr. (A.R.) for Appellant Shri Kewal Shah, C.A. for Respondent CORAM: HONBLE SHRI M.V. RAVINDRAN, MEMBER (JUDICIAL) HONBLE SHRI C.J. MATHEW, MEMBER (TECHNICAL) Date of Hearing: 17.02.2016 Date of Decision: 17.02.2016 ORDER NO. Per: M.V. Ravindran:
These appeals are directed against Order-in-Appeal No. RBT/198-199/2011 dated 29.04.2011 passed by the Commissioner of Central Excise (Appeals-IV), Mumbai Zone-I.
2. Heard both sides and perused the records.
3. The respondent filed refund claim with the authorities for the Service Tax availed on input services which were procured for rendering output services which were exported without payment of Service Tax. The said two refund claims were rejected on the ground that they were filed beyond the period of one year as provided under Section 11B of the Central Excise Act, 1944, which requires filing of refund claims within one year from relevant date which is considered by the lower authorities as the date of export of services. The adjudicating authority rejected the refund claims. On an appeal, the first appellate authority reversed the Order-in-Original and allowed the appeal holding that the relevant date is one year from the date of export of services.
4. We find that the issue is correctly decided by the first appellate authorities. Findings of the first appellate authority is as under:-
6. The refund claim was rejected on the ground of limitation. I find that refund for the period Jan to March, 2007 was filed on 28.03.2008 and refund for the period April to June, 2007 was filed on 26.06.2008, which were filed within prescribed period of one year from the relevant date i.e. end of the respective quarters. The said refund claims would become time barred if the same were filed after 31.03.2008 and 30.06.2008 respectively. In this connection I rely on CBEC Circular No. 112/6/2009-S.T. dated 12.03.2009 issued under F. No. 137/84/2008-CX.4, which pertains to Notification No. 41/2007-S.T. dated 06.10.2007 which allows refund of Service Tax paid on specified services used for export of goods, wherein at Sr. No. 1 it is clarified that consequent upon revision of limitation period, any refund claim that is filed within such revised limitation period would be admissible if it is otherwise in order. Therefore, refund claims of Service Tax on specified taxable services used for export of goods made in quarter Mar-Jun 2008 could be filed till 31st Dec. 2008. As per Notification No. 05/2006-CE (NT) dated 14.03.2006, the refund is required to be filed on quarterly basis and EOU units are allowed to file the same on monthly basis i.e. EOU units are having option to file refund on monthly or quarterly basis. I find that since the appellant has filed refund claim for a quarter, the relevant date for filing refund is end of the quarter and not in accordance with that defined under sub-clause (e) of the Explanation to Section 11B (5) of the Central Excise Act, 1944, as held by the Assistant Commissioner and therefore, both the refunds claims are filed within prescribed period of one year. Further, I observe that in case of GTN Engineering (I) Ltd. 2010 (259) ELT 625 (Tri.-Chennai), Honble Tribunal has held that:-
Refund of Cenvat/Modvat credit on exports - Limitation Applicability of Section 11B of Central Excise Act, 1944 Credit accumulated in CENVAT A/c is not duty paid by exporter - Only when credit debited towards duty payable, it will amount to payment of duty- Section 11B ibid refers to refund of duty paid - Refund claim not of duty paid but of CENVAT credit already taken Issue decided by Tribunal in case of Swagat Synthetics Ltd. [2007 (220) ELT 949 (Tribunal)] as upheld by Hon'ble Gujarat High Court [2008 (232) ELT 413 (Guj.)] holding such accumulated credit as akin to credit in PLA Claims not hit by time bar further as Notification No. 5/2006-C.E. (N.T.) not specify any time limit for refund claim Rule 5 of CENVAT Credit Rules, 2004. I also rely on Hon'ble High Court of Madhya Pradesh judgment in case of STI India Ltd. [2010 (19) STR 614 (M.P.)] wherein it is held that : Refund Limitation Refund of unutilised CENVAT credit on inputs used in goods exported under bond Merely because refund application was not filed strictly within six months before expiry of period specified in Clause 6 of Appendix to relevant notification read with Section 11B of Central Excise Act, 1944 but was filed late by 27 days could not have been made the sole ground for rejection of application as barred by limitation Claim in question did not fall strictly within four corners of Section 11B ibid but within four corners of Clause 6 of Appendix to notification issued under Rule 57F of erstwhile Central Excise Rules, 1944 Refund application held to be in time Rule 5 of CENVAT Credit Rules, 2004. Also relying on the above judgment, I find that claim is not hit by time bar and the appellant is eligible for refund.
7. Secondly, the refund claim was rejected on the ground that the appellant has failed to prove that input services such as Tour Operators Service, Air Travel Agency Service, food coupons (Caterers Service), Courier (Outward) service and Rent-a-cab service, party bill (DJs), cleaning etc, for which they have claimed refund have been used in providing output services exported by them. The appellant has contended that said input services have been used in providing taxable service exported and are related to business. They have given summary of correlation of input services with their output services.
5. The first appellate authority has correctly applied the law by relying the decisions of higher judicial forum. In view of the foregoing, we find the impugned order is correct, legal and does not suffer from any infirmity. The impugned order is upheld and the appeal is rejected.
(Operative portion of the order pronounced in open Court) (C.J. Mathew) (M.V. Ravindran) Member (Technical) Member (Judicial) Sp 4 APPEAL NO. ST/506, 507/11- Mum