Custom, Excise & Service Tax Tribunal
M/S Sdg India Software Pvt. Ltd vs Cce & St, Noida on 4 September, 2017
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL Old Red Building, 38 M.G. Marg, Civil Lines, Allahabad 211 001 COURT NO. II DATE OF HEARING : 04/09/2017. DATE OF DECISION : 04/09/2017. Service Tax Appeal No. 1807 of 2010 (SM) [Arising out of the Order-in-Appeal No. 291/ST/APPL/Noida/2010 dated 24/09/2010 passed by The Commissioner (Appeals), Customs, Central Excise & Service Tax, Noida.] M/s Sdg India Software Pvt. Ltd. Appellant Versus CCE & ST, Noida Respondent
Appearance Shri Ajay Goel, Advocate for the Appellant.
Shri Mohd. Altaf, Authorized Representative (DR) for the Respondent.
CORAM: Honble Shri Ashok Jindal, Member (Judicial) Final Order No. 70869/2017 Dated : 04/09/2017 Per. Ashok Jindal :-
The appellant is in appeal against the impugned order, wherein refund claim has been rejected by the authorities below.
2. The brief facts of the case are that the appellant being an exporter of software and having unutilised accumulated Cenvat credit in Cenvat credit account and filed refund claim under Rule 5 of Cenvat Credit Rules, 2004 on 2nd March 2009 and 19th May, 2009 for unutilized Cenvat credit. On 15/02/2010, a deficiencies memo was issued to the appellant to file all original documents and supporting documents. In defence of their refund claim, the appellant attended the proceedings and all documents were verified and found in order on 22/02/2010. But the refund claim were rejected on several other grounds that the item which has exported by them is not IT service. Moreover, FIRCs consolidated and are not verified and Softex has not been filed. The matter went to the Commissioner (Appeals), who remanded matter back to the Adjudicating Authority. Again, the appeal was filed before the Commissioner (Appeals) who hold that as the appellant has not submitted the Softex and the services are not exported by them, therefore, the refund claim is rejected. Aggrieved by the said order, appellant is before me.
3. Heard the parties.
4. I find that in this case, refund claims were filed on 2nd March, 2009 and 19th May, 2009. To entertain the refund claim the deficiencies memo was issued on 22/02/2010 which is extracted below pointing out the following discrepancies :-
OFFIC OF THE ASSISTANT COMMISSIONER, CENTRAL EXCISE DIVISION NOIDA-I C. No. V(18) Ref/S & G/R-189/N-I/2009 Dated To, The M/s S. D. G. Software Pvt. Ltd.
A-10, Sector-2, NOIDA Dear Sir/Madam, Sub: Personal hearing fixed in refund cases in respect of O-I-A No.45-45-CE/Appeal/NOIDA/2010 dated 08.02.2010 passed by the Commissioner (Appeals) NOIDA in respect of M/s S. D. G. Software Pvt. Ltd. A-10, Sector-2, NOIDA. Please refer to above Order-in-Appeal.
In this context it is hereby informed that afresh hearing is being provided to you at 15:00 hrs on 22.02.2010. You are requested to appear before the Assistant Commissioner, Central Excise Division, Noida-I having his office at E-5 Sector-I Noida on stipulated date and time along with all original documents & O-I-O 12.01.2010 relied in support of your defence failing which case will be decided on its merits and on the basis of records available on the file. Yours faithfully Assistant Commissioner Central Excise Division-I Noida The said query has been replied by the appellant and the same has been recorded in the note sheet as under :-
OFFIC OF THE ASSISTANT COMMISSIONER, CENTRAL EXCISE DIVISION NOIDA-I C. No. V(18) Ref/S & G/R-189/N-I/2009 Dated To, The M/s S. D. G. Software Pvt. Ltd.
A-10, Sector-2, NOIDA Dear Sir/Madam, Sub: Personal hearing fixed in refund cases in respect of O-I-A No.45-45-CE/Appeal/NOIDA/2010 dated 08.02.2010 passed by the Commissioner (Appeals) NOIDA in respect of M/s S. D. G. Software Pvt. Ltd. A-10, Sector-2, NOIDA. Please refer to above Order-in-Appeal.
In this context it is hereby informed that afresh hearing is being provided to you at 15:00 hrs on 22.02.2010. You are requested to appear before the Assistant Commissioner, Central Excise Division, Noida-I having his office at E-5 Sector-I Noida on stipulated date and time along with all original documents & O-I-O 12.01.2010 relied in support of your defence failing which case will be decided on its merits and on the basis of records available on the file. Yours faithfully Assistant Commissioner Central Excise Division-I Noida Attended the hearing on 22.02.2010 at 2:00 P.M.. Originally produced and sample verification done for invoices as for as FIRCs. Nothing further pending query with the department asking or any information/clarification. So, nothing further pending. This is for all the 4 Cases Refund application remanded back by Commissioner (Appeals). (CA, Ajay Goel)
5. As the deficiencies has been raised to the appellant has been replied by the appellant and found in order, therefore, there is no question for the Adjudicating Authority to reject the refund claims without issuance of show cause notice. Moreover, when the refund claims sought to be entertained and relevant papers has been filed by the appellant which were found in order, therefore, authorities below are duty bound to entertain the refund claim which they failed to do so. Therefore, I do not find any merit in the impugned order, the same is set aside.
6. In result, the appeal is allowed with the consequential relief, if any.
(Dictated and pronounced in open court.) (Ashok Jindal) Member (Judicial) PK 5 ST/1807 of 2010