Custom, Excise & Service Tax Tribunal
Msim Global Support & Technology ... vs Commissioner Of Service Tax, Mumbai on 18 August, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPEAL No.ST/431/11-Mum Cross Objection No. ST/CO/95/11-Mum (Arising out of Order-in-Appeal No. RBT/122-123/2011 dated 23/03/2011 passed by Commissioner of Central Excise (Appeals), Mumbai) For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) and 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?
====================================================== MSIM Global Support & Technology Services Appellant Vs. Commissioner of Service Tax, Mumbai Respondent Appearance:
Shri- Prasad Panajape, Advocate for Appellant Shri- S.V. Nair, Supdt (AR), for Respondent CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) Date of Hearing : 18/08/2015 Date of Decision : 18/08/2015 ORDER NO Per: M.V. Ravindran
This appeal is directed against Order-in-Appeal No. RBT/122-123/2011 dated 23/03/2011.
2. Heard both sides and perused the records.
3. The issue involved in this case is regarding the refund claim filed by the appellant which was rejected by both the lower authorities.
4. Learned Counsel appearing on behalf of the appellant would submit that identical issue of the very same appellant was contested before Tribunal and the bench vide final order no. A/1440-1447/2014 dated 27/08/2014, on the point of refund claim been rejected on the ground that FIRC were not in Export of Sport of Services, had remanded back as appellant was able to produce before the tribunal corrected FIRC. He submits that the case in hand and that one is the same.
5. After considering the submissions made by both sides, we find that the adjudicating authority had rejected the entire refund claim while the first appellate authority had allowed part of appeal and partially rejected the appeal. As regards the rejection of the appeal, the findings of the first appellate authority are as under:-
12. Further, the adjudicating authority has observed that in O-I-O at Sr No 1, the purpose of remittance in FIRC Ref No 3149055430 is Exporting of 800 Ltrs of Neem oil to our customer Juan Cristobal Simon Zamora Mexico and therefore, the appellants claim that export value has been received in convertible foreign exchange for the services exported is not acceptable. The appellant has contested that observation of the adjudicating authority is erroneous, as the appellant has not submitted FIRC No 3149055430 at any time for refund claim and they have already submitted in convertible foreign exchange. I have gone through relevant FIRC copy no 769745 (Ref No 3149055430) dated 28.02.2009 and observe that the purpose of remittance in said FIRC is mentioned as Exporting of 800 Ltrs of Neem Oil to our customer Juan Cristobal Simon Zamora mexico, Therefore, I find that the said FIRC does not pertain to invoice under which the appellant has exported Business Support Service to their overseas client. As the appellant has not produced evidence that convertible foreign currency has been received, the appellant is not eligible for refund to that extent. I uphold the impugned O-I-O to that extent.
6. On perusal of the records, we find that appellant is now producing before us the corrected certificate of foreign inward remittances. We find that in the appellants own case, vide final order dated 27.08.2014, we have remanded this issue for reconsideration by recording the following. 5.?As regards the rejection of the refund claim amounting to ` 1.02 crores, the objection was mainly in respect of the FIRCs mentioning that the proceeds have been realised in respect of export of goods. Meanwhile, the said certificates have been corrected by the collecting bank and therefore, this objection would no longer be sustainable. However, the correct certificates were not available before the lower authorities when they rejected the claim and, therefore, the matter is remanded back to the refund sanctioning authority for consideration of the revised FIRCs now obtained by the assessee-appellant from the collecting bank and after considering the same, refund shall be granted to the appellant as per law.
7. In our considered view, this appeal also needs to be allowed by way of remand to the lower authorities on the point of considering corrected foreign inward remittances certificate. The observation as reproduced here in above will be applicable in the proceedings on this point. Matter remanded to adjudicating authority to reconsider the afresh, issue after following principles of natural justice.
8. The impugned order, to that extent is set aside and the appeal is allowed by way of remand.
(Pronounced in Court) (C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial) akp 1 4 APPEAL No.ST/431/11-Mum