Custom, Excise & Service Tax Tribunal
Sew Infrastructure Ltd vs Commissioner Of Central Excise, ... on 5 March, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: ST/2235/2010-SM [Arising out of Order-in-Appeal No. 72/2010 dated 28/07/2010 passed by the Commissioner of Customs, Central Excise & Service Tax, Hyderabad] For approval and signature: HON'BLE Mr. 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? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Sew Infrastructure Ltd. Snehalatha, Greenlands, Begumpet, Hyderabad 500 016 Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax Hyderabad-II L.B Stadium Road, Basheerbagh, Hyderabad 500 004 Andhra Pradesh Respondent(s)
Appearance:
Mr. Anil Kumar B., Advocate Hiregange & Associates #1010, 1st Floor (Above Corp. Bank) 26th Main, 4th T Block, Jayanagar, Bangalore 560 041 Karnataka For the Appellant Mr. S. Teli, AR For the Respondent Date of Hearing: 05/03/2015 Date of Decision: 05/03/2015 CORAM:
HON'BLE Mr. B.S.V. MURTHY, TECHNICAL MEMBER Final Order No. 20535 / 2015 Per: B.S.V. MURTHY Brief facts of the case are that, the appellants are engaged in the activity of building various infrastructural and other projects for Government and Non government organizations. They have filed four refund claims on 25.03.2008 for refund of service tax paid on construction services rendered to M/s. Madhaya Pradesh State Electricity Board and M/s. Ginni Global Limited. The three refund claims were rejected by the Deputy Commissioner of Service Tax vide OIO Nos. 32 to 34/2008 dated 15.09.2008. The appellants filed an appeal against the said orders with Commissioner (Appeals), who has remanded the issue to the original adjudicating authority for giving clear finding as to whether the activities undertaken by them fall under Commercial or industrial Construction Services or Works Contract Services and accordingly decide the eligibility of refund claim in question. Consequent to the Commissioner (Appeals-II) order the original adjudicating authority passed the orders vide OIO Nos. 28 to 30/2009 ST (R) dated 15.04.2009 holding that the services rendered by the appellants are rightly classified under Commercial or Industrial Construction Services and the service tax paid by them is in order, they are not entitled for refund of service tax as claimed by them. Meanwhile the fourth claim was also rejected by the lower authority on merits and on the issue of time bar vide OIO No. 41/2009 (R) dated 22.05.2009. The appellants again went to appeal against the above four orders before Commissioner (Appeals-II). The Commissioner (Appeals-II) vide OIA No. 46 to 49/2009 (H-II) ST dated 30.07.2009 has set aside the orders of the lower authority and held that the activities undertaken by the appellants are rightly classifiable under Works Contract Service and liable for service tax w.e.f. 01.06.20007. As the subject appeals relate to the period prior to 01.06.2007, the appellants are not liable for levy of service tax during that period i.e. prior to 01.06.2007. Accordingly all four appeals are allowed with consequential relief. Consequent to the Commissioner (Appeals) OIA Nos. 46 to 49/2009 (H-II) dated 30.07.2009 the appellants have applied for refund of Rs. 70,11,914/- (Rupees Seventy Lakhs Eleven Thousand Nine Hundred and Fourteen only) vide their refund application dated 11.08.2009 received in the Deputy Commissioners office on 18.08.2009.
2. The letter written by the appellant and received by the original authority on 18.08.2009 was considered as a refund claim and sanctioned within the period of three months specified under the law and thereafter aggrieved by the fact that interest was not calculated and paid from considering the date of filing original refund claim, the appellants filed an appeal before the Commissioner (Appeals). The Commissioner (Appeals) also took the view that the refund claim was filed on 18.08.2009 and has been settled within the period specified and therefore no interest is payable.
3. From the brief facts which has been reproduced above which is in fact a reproduction of brief facts given by the Commissioner (Appeals) in his order shows that there refund claim had been filed earlier and the whole dispute started after the refund claim was filed and it was rejected. That being the position the stand taken by the Revenue that the refund claim was filed on 18.08.2009 only is allowed or not is the question.
4. The learned CA on behalf of the appellant submitted that appellant had filed the refund claim on 25.03.2008 and he draws my attention to the copy of the refund claim filed by them with the appeal memorandum. In fact there is no dispute on this fact also since this was what started more than one round of litigation in this case. Therefore in my opinion this was the date that should have been considered for the purpose of claim for interest by the appellant by the learned Commissioner (Appeals). As submitted by the learned CA this view is supported by the decision of the Honble Supreme Court in the case of Ranbaxy Laboratories Ltd. Vs. Union of India [2011 (273) E.L.T. 3 (S.C)]. In paragraph 15 Honble Supreme Court clearly held that the liability of the Revenue to pay interest under Section 11BB of the Central Excise Act commences from the date of expiry of three months from the date of receipt of application for refund under Section 11B(1) of the Central Excise Act and not on the expiry of the said period from the date on which order of refund is made. In this case the refund claim was filed in 2008 and interest also has to be considered on the basis of that date. Accordingly the appeal is allowed with consequential relief, if any, to the appellant.
(Order pronounced in open court) (B.S.V. MURTHY) TECHNICAL MEMBER iss