Custom, Excise & Service Tax Tribunal
Cross Tab Marketing Services Pvt Ltd vs Mumbai East on 19 September, 2018
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal ST/86323 to 86331 & 86335 to
No. 86337/2018
(Arising out Order-in-Appeal No. PK/335 to
346/ME/2017 dated 14.12.2017 passed by the
Commissioner (Appeals II) CGST & CX, Mumbai)
M/s. Cross Tab Marketing Services Pvt. Ltd. Appellant
Vs.
CCGST Mumbai East Respondent
Appearance:
Shri Parth Shah, CA for the appellant Shri M.P. Damle, AC (AR) for the respondent CORAM:
Hon'ble Dr. Suvendu Kumar Pati, Member (Judicial) Date of hearing : 20.08.2018 Date of decision : 19.09.2018 O R D E R No: A/ 87347-87358/2018 Denial of refund claims of the appellant in 12 numbers of adjudication orders being confirmed in one order of the Commissioner (Appeals), is challenged before this Tribunal.
2. The contention of the appellant is that it is a company providing market research agency service to foreign customers only and for the period post July 2012, after introduction of negative list and Place of Provision of Service -2- ST/86323-86331/2018 Rules, 2012 (PPSR), the appellant sought for refunds which were partially allowed and partially rejected without appellant being called upon to explain the nexus between the input and output service, credit against which were considered not admissible by the respondent department.
3. Ld. AR justified and reiterated the order of the Commissioner (Appeals) allegedly passed on merit.
4. Gone through the case record and order passed by the Commissioner (Appeals) and the orders-in-original. It is found that against 12 order-in-originals common order has been passed by the Commissioner (Appeals). The contentions of the parties are recorded and the grounds of rejection of adjudicating authority concerning admissibility and non-admissibility of cenvat credit have been dealt with. Inadmissibility of cenvat credit totalling to `42,62,073/- on the ground specified in the order-in-original are also reflected in his order, against which denial of refund was made. The grounds are as under:-
i) That, the services are not covered under the definition of "input services" in terms of Rule 2(l) of the Cenvat Credit Rules 2004 and have not gone into consumption for provision of output services. -3-
ST/86323-86331/2018
ii) That the input services have no nexus or any relation with the output services, in terms of Rule 2(l) of the Cenvat Credit Rules, 2004.
iii) That the payments to vendors are not made within the period of three months from the date of invoices as per Rule 4 (Sub-Rule 7) in Cenvat Credit Rules 2004.
iv) That the address of the service receiver not mentioned on the invoices.
5. What is found from the record and from the order passed from the Commissioner (Appeals) is that the submissions of the appellant before him that entire services have been exported for which nexus between input and output service are not required to be established, was not accepted by him despite the fact that this appellate Tribunal in 2016 (41) STR 984 in the case of Ness Technologies has given a similar finding.
6. During the course of hearing of the case, ld. Counsel for the appellant submitted a bunch of invoices copies to establish the nexus between input and output services and its applicability to its refund claim besides the fact that it claimed violation of principles of natural justice in refund without giving them an opportunity of being heard and adjudicated upon it without show-cause notice and he cited -4- ST/86323-86331/2018 case laws reported in 1983 (13) ELT 1342 (SC), 1985 (21) ELT 281, 2012 (27) STR 387 (Tri-Del), 2009 TIOL 84 CESTAT DEL, 2008 (11) STR 212 (Tri-Del) to support his submissions. On perusal of 2 items namely insurance services and hotel accommodation invoices, it is found that for the period pertaining to 15.12.2013 to 14.02.2014, two insurance coverage were obtained by the appellant and the conditions available on the overleaf of the insurance bond reflected that one is taken for property damage and other one is taken against legal protection that may arise due to dishonesty of employees, loss of documents, cover for defamation as well as intellectual property infringement made. Further, concerning hotel accommodation, the bills produced by the appellant indicate that one Prashant Reddy was accommodated in a Bangalore based hotel for four days, and the ld. Counsel submits that it was in connection with the business of the company which could have established in having given the chance to the appellant to substantiate the same before the adjudicating authority. The Appellate Tribunal can give direction for fresh adjudication or decision by the authority who passed such decision/ order after taking additional evidence [Section 35C(1)] and Rule 23 enables this Appellate Tribunal to direct parties to produce documents before it for purpose of assessment or grant permission to parties to adduce -5- ST/86323-86331/2018 evidence before it. However, considering the fact that impugned order categorically held to be inadmissible and the same admissibility requires thorough scrutinisation of documents whereby the appellant would get an opportunity to be heard and substantiate its claim on admissibility of refund of cenvat credit, I consider that it is a fit case that needs re-adjudication by the adjudicating authority. Hence the order --
Order The order passed by the Commissioner (Appeals) Order-in-Appeal No. PK/335 to 346/ME/2017 dated 14.12.2017 is hereby set aside and the matter is remanded back to the adjudicating authority for fresh adjudication in terms of above observations. The appellant is duty bound to produce relevant documents before him upon notice.
(Pronounced in Court on 19.09.2018) Dr. Suvendu Kumar Pati Member (Judicial) //SR