Custom, Excise & Service Tax Tribunal
Ness Technologies (India) Pvt. Ltd vs Commissioner Of Customs ,Central ... on 1 May, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: ST/2189/2010-SM, ST/2190/2010-SM, ST/2191/2010-SM [Arising out of Order-in-Appeal No. 58,59 & 60-2010 dated 13/07/2010 passed by CC,CE&ST(Appeals-II), Hyderabad] For approval and signature: HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER 1 Whether Press Reporters may be allowed to see 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 CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether Their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? Ness Technologies (India) Pvt. Ltd. 8-2-626, Reliance Majestic, Road, No.11, Banjara Hills, Hyderabad.500034. Appellant(s) Versus Commissioner of Customs ,Central Excise and Service Tax (Appeals) Hyderabad-II Respondent(s)
Appearance:
Shri Mehrdesmuk, Advocate For the Appellant Shri N. Jagdish, Superintendent(AR) For the Respondent Date of Hearing: 01/05/2015 Date of Decision: 01/05/2015 CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER Final Order No. 21128-21130 / 2015 Per : B.S.V. MURTHY In all the three appeals, issue involved is common and all the three appeals are challenging a common order. Therefore all the appeals are taken together and a common order is passed.
2. Brief facts of the case are that the appellants are registered for providing taxable service under the category of information technology service. They are 100% EOU registered under the Software Technology Parks of India (STPI) scheme. They filed three refund claims in respect of the unutilized CENVAT credit of service tax paid on input services under Rule 5 of the CENVAT Credit Rules 2004(CCR) read with Notification No.5/2006-CE(NT) dt. 14/03/2006 issued under the said rule. The adjudicating authority held that the said rule allows for refund of input service credit only when the output service provider was not in a position to utilize the input service credit accumulated on account of exports during that period and since the appellants had domestic clearances, they could have used this accumulated credit for payment of service tax on domestic clearances. It was further held that the appellants had paid the duty for domestic clearances in cash instead of utilizing the CENVAT credit and hence it cannot be said that the appellants were not in a position to utilize the CENVAT credit as envisaged in Rules 5 of the CCR. Accordingly the claims were rejected. Appeals filed by the appellants were also rejected.
3. In this case, appellants were providing services in the DTA also and paid the service tax in cash in instead of utilizing CENVAT credit. Thereafter realizing that they could not utilize the CENVAT credit after exports were made, filed the refund claims. Refund claims have been rejected on the ground that appellants could have been utilised CENVAT credit for payment of service tax in respect of services provided in DTA.
4. In the appeal memorandum, the appellants have relied upon the decision in the decision in the case of Navbharat Industries Vs. CCE, Thane-I [2006(199) ELT 148 (Tri-Mumbai)] to support their claim that they are eligible for the refund. The relevant observations of the Tribunal in the order are in paragraph 6 and the same is reproduced for better appreciation. The use of words for any reason as observed by the Tribunal would show that even in the cases like that of the appellant, the refund has to be allowed. Accordingly, the rejection on the ground that appellant should have utilised the credit cannot be accepted. It is also noticed that both the lower authorities have not even considered the Tribunals decision and distinguished.
5. Further the original authority had held that CENVAT credit of Rs.35,445/- was not admissible and therefore not eligible for refund. There is no discussion about this in the order of the Commissioner(Appeals) and even in the appeal memorandum, no submissions have been made. On going through the table wherein eligibility has been considered, it is seen that in respect of three invoices credit has been disallowed on the ground that the invoices are in favour of Ness Technologies (India) Pvt. Ltd., Bangalore. There are several decisions taking a view that on the ground that the invoice is in the name of different person, credit cannot be denied. Rule 9(2) of CCR specifies the essential ingredients and also provides that if these are available, credit can be allowed by the concerned authority. While considering the refund claims afresh, the original authority may please consider this aspect. Two amounts of Rs.809/- and Rs.2971/- have been disallowed on the ground that the refund claim related to one month whereas invoices related to three months. This observation is correct.
6. In the result, appeals are allowed subject to the observation hereinabove and the matters are remanded to the original adjudicating authority to consider the refund claims afresh and sanction the refund in line with the above order and also consider the eligibility in terms of the above order.
(Operative part of this order pronounced in open court) B.S.V.MURTHY TECHNICAL MEMBER Raja..