Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, ... vs Principal Global Services Pvt Ltd on 23 March, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. ST/87737/14 ST/CO/91098/15 [Arising out of Order-in- Appeal No. PUN-EXCUS-003-APP-368-13-14 dated 21/2/2014 passed by the Commissioner of Central Excise, (Appeals), Pune-III] For approval and signature: Honble Mr Ramesh Nair, Member(Judicial) =======================================================
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 :
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?
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Commissioner of Central Excise, Pune-III
:
Appellants
VS
Principal Global Services Pvt Ltd
:
Respondent
Appearance
Shri. R.K. Das, Dy. Commissioner(A.R.) for the Appellants
Shri. Mihir Deshmukh, Advocate with Shri. Abhijit Singh, Advocate for the Respondent CORAM:
Honble Mr. Ramesh Nair, Member (Judicial) Date of hearing: 23/3/2016 Date of decision: /2016 ORDER NO.
Per : Ramesh Nair This Revenues appeal is directed against Order-in- Appeal No. PUN-EXCUS-003-APP-368-13-14 dated 21/2/2014 passed by the Commissioner of Central Excise, (Appeals), Pune-III whereby Ld. Commissioner modified the Order-in-Original No. R/441/ STC/PIII /2013 dated 28/8/2013 allowed the appeal filed by the appellant.
2. The fact of the case in brief is that the respondent are engaged in the activity of providing Management Consultants Service, Commercial Coaching & Training Centre Service, Information Technology Software Service, Business Auxiliary Service. Appellant had filed refund claim for Rs. 30,56,748/- on 3/5/2013 under Rule 5 of the Cenvat Credit Rules, 2004read with Notification No. 27/2012-CE(NT) dated 18/6/2012 in respect of Cenvat credit accumulated on account of export of services valued at Rs. 22,70,67,212/- which were exported without payment of Service Tax, during the period from April, 2012 to June, 2012. Vide Order-in-Original Ld. Asstt. Commissioner has allowed the refund of Rs. 18,79,845/- and rejected refund claim amounting to Rs. 11,76,903/-. Rejection of claim was made on account of one particular transaction of export covered under invoice No. INV/03/2012 dated 6/4/2012 corresponding FIRC No. AD-423909 dated 18/4/2012. The refund was filed on 3/5/2013 therefore it is time bar accordingly value of Rs. 8,55,96,142/-. Thus, though it is export turnover for the April, 2012 to June, 2012 in terms of clause (D) of sub rule (1) of Rule 5 of CCR, 2004 but the actual export turnover of the export service for the quarterly period of this refund claim would be Rs. 14,14,71,070/-( Rs. 22,70,67,212/- minus Rs. 8,55,96,142/-) as per this position the refund claim was calculated as under:
14,14,71,070/- x 30,17,233/-
22,70,67,212/- = 18,79,845/-
Aggrieved by the Order-in-Original, the respondent filed appeal before the Commissioner(Appeals) which was allowed on the ground that value of Rs 8,55,96,142/- is export turnover of April 2012 to June, 2012 quarter therefore the same should be added in not only for total turnover but also for export turnover and accordingly the refund was calculated as under:
22,70,67,212/- x 30,56,746/-
22,70,67,212/- = 30,56,748/-
As regard the time bar Ld. Commissioner hold that the refund under Rule 5 to be filed quarterly. The period of one year as provided under Section 11BB shall be available from the end of the relevant quarter. In this case the period of one year is available from 30/6/2012 therefore is not time bar. Aggrieved by the impugned order, Revenue is before me.
3. Shri. R.K. Das, Ld. Dy. Commissioner(A.R.) appearing on behalf of the Revenue reiterating the grounds of appeal submits that in respect of export covered under Invoice No. INV/03/2012 dated 6/4/2012 it could not be considered as export under quarter April, 2012 to June, 2012 but the same should be considered under total turnover. Accordingly, the Adjudicating authority has applied the formula and figures therein and correctly rejected the refund of Rs. 11,76,903/-. He submits that the refund related to sale invoice dated 6/4/2012, FIRC date is 18/4/2012. FIRCs date is correct date of export therefore the refund should have been filed within one year from the date of FIRC issued, refund claim was filed on 3/5/2012 which is time bar. Hence the refund was not admissible on merit as well as time bar. He placed reliance on the judgment in case of Commissioner of Central Excise, Coimbatore Vs. GTN Engineering (I) Ltd[2012(281) ELT 185(Mad.)].
4. On the other hand, Shri. Mihir Deshmukh, Advocate with Shri. Abhijit Singh, Advocate appeared on behalf of the Respondent. Shri. Mihir Deshmukh, Ld. Counsel submits that the refund related to Invoice No. INV/03/2012 dated 6/4/2012 was already claimed and the same has been granted for the quarter January to March, 2012 for the reason that this invoice dated 6/4/2012 is related to the services exported during March 2012 as invoice raised in the subsequent month. He submits that for this reason value of this invoice should neither be taken in total turnover as well as export turnover for the period April to June, 2012 accordingly entire refund Rs. 30,56,748/- is admissible therefore the refund of Rs. 11,76,903/- allowed by the Ld. Commissioner(Appeals) is correct. As regard the time bar, he submits that as already stated refund is not claimed in respect of Invoice No. INV/03/2012 dated 6/4/2012 as refund has already been granted in the quarter January to March, 2012 there is no question of time bar.
5. I have carefully considered the submissions made by both the sides and perused the record.
6. I find that as regard the Invoice No. INV/03/2012 dated 6/4/2012 service pertains to period March, 2012 and refund related to it has already been taken by the appellant. If this is so value of said invoices amounting to Rs. 8,55,96,142/-. has to be taken in exports as well as total turnover for the period January, to March, 2012. In this situation the same amount cannot be taken either in the total turnover or in the export turnover for the period of April to June, 2012 thus in my view refund should have been calculated as below:
14,14,71,070/-, x 30,17,233/-
14,14,71,070/- = 30,17,233/-
However Adjudicating authority though taken this value of the invoice dated 6/4/2012 in the total turnover of April to June, 2012 but reduced the said amount from total turnover and the balance amount i.e. Rs. 14,14,71,070/- was taken as export turnover which is apparently wrong. I find that the Ld. Commissioner also made mistake in taking total turnover and export turnover as Rs. 22,70,67,212/-, therefore though the amount refundable is Rs. 30,56,748 but calculation should be made as mentioned by me above. I find that it is admitted fact that services related to invoice dated 6/4/2012 was already considered as export of service in the quarter January to March, 2012, therefore the same can neither be taken in total turnover nor in export turnover for the period April to June, 2012.
6.1 As regard the time bar, since the respondent has not claimed the refund related to invoice dated 6/4/2012 in the quarter April to June, 2012 there is no question of refund getting time bar.
6.2 In view of the above, the respondent is correctly entitle for the refund of Rs. 30,56,748/- but the total turnover and export turnover applied by the Adjudicating authority as well as the Commissioner(Appeals) was wrong. Accordingly the impunged order stand modified as explained above. Appeal is disposed in above terms. CO is also disposed of accordingly.
(Order pronounced in court on_______________) Ramesh Nair Member (Judicial) sk 6