Custom, Excise & Service Tax Tribunal
Service Tax - Ahmedabad vs Oxygen Bio Research P Ltd on 17 July, 2018
In The Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench At Ahmedabad
Appeal No.ST/10509-10510/2016-DB
[Arising out of OIA-AHM-SVTAX-000-APP-124-125-15-16dated 15.01.2016 passed by
Commissioner of Service Tax-SERVICE TAX - AHMEDABAD]
CC.S.T.- ST-Ahmedabad Appellant
Vs
M/s Oxygen Bio Research P Ltd Respondent
Represented by:
For Appellant: Shri S.N. Gohil (AR) For Respondent: Shri Vipul Khandhar (CA) CORAM:
HON'BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) HON'BLE MR. RAJU, MEMBER (TECHNICAL) Date of Hearing/Decision: 17.07.2018 Final Order No. A/ 11534-11535 /2018 Per: Ramesh Nair Brief facts of the case are that the respondent have declared service tax liability under VCES Scheme in respect of service which is received from abroad and the service tax is payable under reverse charge mechanism as provided under Section 66A. After payment of service tax as per VCES Scheme, the respondent availed the CENVAT credit of said service tax paid under VCES Scheme. The respondent being SEZ Unit claimed the refund of accumulated CENVAT of input service under Notification 12/2013-ST dated 01.07.2013. The adjudicating authority rejected the refund claim on the ground that since the amount of service tax on which CENVAT credit was availed was paid under VCES Scheme, in terms of Section 109 of Finance Act, 2013, any amount paid in pursuance of declaration made under sub section 1 of section 107 was not refundable under any circumstances. Being aggrieved by rejection order of the
2|Page ST/10509-10510/2016-DB adjudicating authority respondent filed appeal before Ld. Commissioner (Appeals) who allowed the appeals, therefore Revenue is in appeal.
2. Sh. S N Gohil Ld. Superintendent (AR) appearing on behalf of the Revenue reiterates the ground of the appeal. He submits that as per Section 109 of the Finance Act, 2013 under any circumstances amount paid under VCES Scheme cannot be refunded, therefore, the refund was rightly rejected by the adjudicating authority hence, the Ld. Commissioner (Appeals) has erred in allowing appeal of the respondent.
3. Sh. Vipul Khandhar Ld. CA appearing on behalf of the respondent support the order in appeal, he submits that the appellant are entitled for CENVAT credit in respect of the service tax paid on input service even under VCES Scheme as clarified by Board in Circular No. 170/5/2013-ST dated 08.08.2013 and Circular No. 176/02/2014-ST dated 20.01.2014. He submits that the refund is under specific provision of SEZ Act which override all the provision of other acts, therefore, the refund was rightly allowed by Commissioner.
4. We have carefully considered the submission made by both the sides and perused the records. We find that as per the facts of the case it is not the refund in respect of the service tax paid by the respondent under VCES Scheme whereas the compliance of VCES Scheme was made. One the service tax dues declared by respondent have already been paid, the next step is whether the respondent is eligible for CENVAT credit in respect of said service tax paid. As per clarification given by the board in the circular cited by the Ld. Counsel for the respondent. The respondent was legally entitled for the CENVAT credit since CENVAT credit of the service tax paid on the reverse charge basis in respect of the input service. Any service tax paid of the input service whether under VCES
3|Page ST/10509-10510/2016-DB Scheme or otherwise the same is available as CENVAT credit to the assessee. Once the CENVAT credit is legally admissible it is available either for utilization for payment of service tax/excise duty. In the present case the appellant being SEZ Unit is entitled for the refund of CENVAT credit under Notification No. 12/2013-ST. In these facts the case of the respondent does not fall under section 109 of the Finance Act, 2013, accordingly, the respondent is rightly entitled for the refund of CENVAT credit availed by them under Notification No. 12/2013-ST. Therefore, we do not find any infirmity in the impugned order hence, the impugned orders are upheld and Revenue's appeals are dismissed.
(Operative portion of the order pronounced in the open court) (Raju) (Ramesh Nair) Member (Technical) Member (Judicial) Seema