Custom, Excise & Service Tax Tribunal
The Commissioner Of Service Tax vs M/S. Continuous Computing India Pvt. ... on 4 February, 2011
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench - SMB
Court - I
Date of Hearing: 04.02.2011
Date of decision: 04.02.2011
Appeal Nos. ST/1879 & 1880/2010
(Arising out of Orders-in-Appeal No.205 & 206/2010 dated 03.06.2010 passed by the Commissioner of Central Excise (Appeals) Bangalore)
For approval and signature:
Honble Mr. P. Karthikeyan, Member (Technical)
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 Lordship wish to see the fair copy of the Order?
Seen
4. Whether Order is to be circulated to the Departmental authorities? Yes
The Commissioner of Service Tax
Bangalore ..Appellant(s)
Vs.
M/s. Continuous Computing India Pvt. Ltd. Respondent(s)
Appearance Mr. Harish, JDR for the appellant Mr. Jatin Christopher, CA (No Vakalat) for the respondent Coram:
Honble Mr. P.Karthikeyan, Member (Technical) FINAL ORDER Nos._______________________2011 Per P.Karthikeyan These are two appeals filed by the Revenue seeking to vacate the impugned orders passed by the Commissioner (Appeals) on the ground that they are remand orders and the Commissioner does not have powers of remand. In terms of Section 35A (3) of the Central Excise Act, 1944 made applicable to the Finance Act 1994, the Commissioner is competent to pass such an order as he thinks just and proper, confirming, modifying or annulling decision or order appealed against. In view of these provisions, the impugned orders deserve to be set aside. The facts of the case are that the respondents M/s. Continuous Computing India Pvt. Ltd. Bangalore are a STPI unit engaged in export of services classified under the categories Consulting Engineer, Business Auxiliary Service and Information Technology Software Services. They took credit of service tax paid on various inputs such as Renting of Immovable Property, Telecom and Internet Services, Custom House Agent Service, Management Consultancy, Maintenance and Repair Services etc. The respondents claimed refund of accumulated Cenvat credit in terms of Rule 5 of Cenvat Credit Rules, 2004 read with Notification No. 5/2006-CE NT dated 14.03.2006. Separate claims were made as per the following particulars:
Sl.
No. Order-in-Original No. Period involved Amounts involved (Rs.) 1 16/2009 dt. 13.01.2009 July 07 to 3/2008 11,94,181/-
2 265/2009 dt.08.07.2009 April 08 to June 2008 4,32,202/-
2. The original authority rejected the refund sanctioned in respect of the first claim of Rs. 11,94,181/- on the ground of limitation as well as on merits. As regards the second claim for the period April 2008 to June 2008, the original authority sanctioned refund of Rs. 2,78,060/- on the input service viz. Telecom and Internet Service, Renting of Immovable Property Service and rejected Rs. 1,54,142/- relatable to other services. On appeals filed by the respondents, while upholding the order of rejection of refund claim on the ground of limitation, the Commissioner (A) vacated the orders of the original authority rejecting the refund claim on merits. He passed the following common order:
Both the orders in original bearing No. 16/09 dated 9.1.09/13.1.2009 passed by the Deputy Commissioner of Service Tax, III Division, and order in original No. 265/09 dated 8.7.2009 passed by the Asst. Commissioner of Service Tax, II Division, Service Tax Commissionerate, Bangalore have been modified and both the appeals bearing No. 135/09 ST and No. 389/09 ST are allowed with consequential benefit of sanction of refund except for the period hit by limitation of time subject to the production of certificate by the Chartered Accountant on the appellants declaration as per Boards Circular No. 120/1/2010 dated 19.1.2010.
3. Learned JDR submits that the impugned order is not legal as the Commissioner (Appeals) had remanded the dispute to the original authority. The learned Chartered Accountant representing the respondent submits that the impugned orders did not remit the dispute to be decided by the original authority. The Commissioner (Appeals) applied his mind and found that the respondents were entitled to refund claim on merits. He had also sustained the order of the lower authority rejecting part of the claim as barred by limitation.
4. On a careful consideration of the records of the case and submissions made by both sides, I find considerable merit in the submissions by the learned Chartered Accountant representing the respondents. The impugned order decided the dispute in favour of the respondents and remitted the matter to sanction refund claim to the extent made in time as per law subject to the assessee following the procedure prescribed by the CBEC. In the circumstances, I do not find any infirmity in the impugned order and reject the appeals filed by the Revenue.
(Pronounced & dictated in open Court) (P. KARTHIKEYAN) MEMBER (TECHNICAL) Iss..