Custom, Excise & Service Tax Tribunal
M/S. Urschel India Trading Pvt. Ltd vs Commissioner Of Central Excise, ... on 27 February, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. ST/86659/13-MUM [Arising out of Order-in- Appeal No. PII/RP/18/2013 dtd. 22/1/2013 passed by the Commissioner (Appeals-III), Central Excise, Pune] 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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M/s. Urschel India Trading Pvt. Ltd.
:
Appellant
VS
Commissioner of Central Excise, Pune-III,
:
Respondent
Appearance
Shri. Pralhad J. Mandhane, C.A. for the Appellant
Shri. B. Kumar Iyer, Superintendent(A.R.) for the Respondent
CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Date of hearing: 27/2/2015
Date of decision: 27/2/2015
ORDER NO.
Per : Ramesh Nair
The appeal is directed against Order-in- Appeal No. PII/RP/18/2013 dated 22/1/2013 passed by the Commissioner (Appeals-III), Central Excise, Pune wherein appeal filed by the Revenue was allowed by setting aside the order-in-original No. R/300/STC/PIII/2012 dated 14/6/2012. The facts of the case is that the appellant is providing the Business Auxiliary Service to their parent company situated in Singapore and paid the service tax on such services. Subsequently the appellant filed refund claim of Rs. 4,27,873/- on 13/3/2012 alongwith following necessary documents:
(a) Form R- Application for refund of service Tax
(b) Service Tax registration certificate
(c) Write up about the activities of the company
(d) Copy of service tax return for the period April 2011 to September 2011
(e) Service tax payment summary
(f) Photocopy of service tax payment challans
(g) Photocopy of invoices raised for claiming commissioner due
(h) Ledger extract of Urschel Singapore
(i) Photocopy of FIRCs
(j) CA certificate 1& 2 The sanctioning authority vide adjudication order No. R/300/STC/PIII/2012 dated 14/6/2012 sanctioned refund claim of Rs. 4,27,873/-. Aggrieved by the said order, the Revenue filed appeal before the Commissioner (Appeals), who has allowed the appeal of the Revenue and set aside the order-in-original. Aggrieved by the impugned order the appellant is before me.
2. Shri. Pralhad J. Mandhane, Ld. C.A appearing on behalf of the appellant submits that the appellant has provided export services to the service recipient who is located in Singapore and they have received the service tax in convertible foreign currency and in token of evidence to that effect they submitted export sale invoices, copies of FIRC. It is his submissions that their case is of refund of service tax paid in respect of services and which is not in dispute. Though the adjudicating authority while sanctioning the refund contended that their services are exempted under notification No. 13/2003 dated 20/6/2003, therefore appellant is entitled for the refund but the fact of the export of service and remittance of service charges in convertible foreign currency is not under dispute. He submits that appellant has produced Chartered Accountants certificate also which has been considered by the Ld. Adjudicating authority to prove that incident of service tax paid on export services has not been passed on to any other person. In view of all this undisputed facts, the refund sanctioned by the adjudicating authority cannot be disputed. He submits that as regard claim of refund of export services of the appellant, Ld. Commissioner (Appeals) has given findings that the plea regarding export of service taken by the appellant is an afterthought and beyond the scope of present appeal since it was neither part of their refund claim nor was contended before the original adjudicating authority. It is submitted by the Ld. Counsel that the claim filed by the appellant was in respect of service tax paid on export service, all the documents supporting the claim was documents required for sanctioning of claim against export only. The refund application made by the appellant itself clearly shows that the refund was claimed against export of services. Therefore it is wrong on the part of the Ld. Commissioner (Appeals) that appellant has taken this plea of export of services first time before the Commissioner(Appeals). Without prejudice he also submits that even it is position that the plea of refund against export service was not taken by the appellant before the original authority but if it is taken before the Ld. Commissioner(Appeals) it was well within his jurisdiction to entertain such plea and appeal could have been disposed of accordingly.
3. Shri. B. Kumar Iyer, Ld. Superintendent(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order.
4. I have carefully considered the submissions made by both the sides and perused the record.
5. On perusal of records, such as application of refund and documents submitted alongwith the said refund it is observed that the appellant have submitted export invoices, FIRCs, C.A. Certificate etc., which clearly shows that the claim is in respect of service tax paid on the services which was admittedly provided to foreign entity and the remittance of service charges was made by the foreign entity in convertible foreign currency to the appellant. With this admitted fact it is beyond any doubt that the services clearly falls under the export service in terms of export of service Rules, 2005. In view of this fact denial of refund on the ground that the appellant have not claimed the refund considering as export services is misleading and not sustainable. As regard finding of the lower authority for considering the refund it was contended that services were exempted under notification No. 13/2003 dated 20/6/2003. I am of the considered view that once it is undisputed that the service in question falls under export of service Rules, 2005 and the remittance of service charges made in convertible foreign currency which is evident from FIRCs submitted to the adjudicating authority. The claim of the appellant falls under the claim towards export of services therefore even though the adjudicating authority contended that services are covered under exemption notification No. 13/2003 dated 20/6/2003 it can not take away entitlement of refund under export of service. In view of my above discussion, I am of the considered view that the appellant in any case is legally entitled for the refund and therefore sanction of the refund is liable to be maintained and can not be interfered therefore the impugned order is set aside and the appellants appeal is allowed.
(Operative part pronounced in court) Ramesh Nair Member (Judicial) sk 6