Custom, Excise & Service Tax Tribunal
Cbay Systems (India) Pvt. Ltd vs Commissioner Of Central Excise, Mumbai on 12 August, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI APPEAL NO. ST/302/09-Mum. (Arising out of Order-in-Appeal No. YDB/65/M-II/2009 passed by the Commissioner (Appeals) Central Excise, Mumbai Zone-II For approval and signature: Honble Shri Ashok Jindal, 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 : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
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CBay Systems (India) Pvt. Ltd.
:
Appellants
VS
Commissioner of Central Excise, Mumbai.
Respondents
Appearance
Shri Bharat Raichandani, Advocate for Appellants
Shri B.P. Pareira, JDR Authorized Representative
CORAM:
Shri Ashok Jindal, Member (Judicial)
Date of decision : 12/08/2010
ORDER NO.
Per : Ashok Jindal, Member (Judicial)
The appellant has filed this appeal against the denial of their refund claim by the lower authorities as the appellants were not registered under the category of Business Auxiliary Service.
2. Shri Bharat Raichandani the learned Advocate for the appellant drew my attention to the Circular No. 112/6/2009-S.T. dated 12.3.2009, which clarifies the issue involved in this case. He also submitted that there is no provision in the CENVAT Credit Rules or the Service Tax laws that the assessee is not entitled for the service tax credit if is not registered under that category of service. He also relied on the decision of Aarvee Denims & Exports Ltd. Vs. CCE reported in 2009 TIOL-1524-CESTAT-AHM wherein this Tribunal has held as per Circular No. 112/6/2009-S.T. dated 12.3.2009, even if the service provided is registered for providing one service refund cannot be denied on the ground that the taxable service provided are not covered under the registration. The documentary evidence showing the collection of service tax from the appellant would met the requirement of law and the appellant is not expected to produce evidence to show that the service provider is actually deposited the dues with the Government.
3. The learned DR supported the impugned orders.
4. Heard both sides.
5. I have gone through the contents of the Circular which are reproduced hear as under:-
Filing of claim for refund of service tax paid under Notification No. 41/2007-S.T., dated 6.10.2007 Regarding.
Notification No. 41/2007-S.T., dated 6.10.2007 allows refund of service tax paid on specified services used for export of goods. to resolve the procedural difficulties arising in implementation of this refund scheme the Board has earlier issued Circulars No. 101/4/2008 S.T., dated 12.5.2008 [2008 (10) S.T.R. C22] and No. 106/9/2008-S.T., dated 11.12.2008 [2009 (13) S.T.R. C3].
The Board has received further references from field formations and trade seeking clarification on other procedural issues. The issue and the clarification is discussed in the following table.
Sr.No. Issue Raised Clarification The service provider providing services to the exporter provides various services. But he has registration of only one service. The refund is being denied on the grounds that the taxable services that are not covered under the registration are not eligible for such refunds.
Notification No.41/2007-S.T. provides exemption by way of refund from specified taxable services used for export of goods. Granting refund to exporters, on taxable services that he receives and uses for export do not require verification of registration certificate of the supplier of service. Therefore, refund should be granted in such cases, if otherwise in order. The procedural violations by the service provider need to be dealt separately, independent of the process of refund.
The circular mentioned hereinabove is clearly spelt that the assessee is entitled to claim the refund in the facts and circumstances of this case and the facts of Aarvee Denims & Exports Ltd. (Supra) are squarely applicable to this case and the Board Circular cited hereinabove. Accordingly, the denial of refund claim on the ground that the appellant is not registered under the Business Auxiliary Service is not sustainable. Accordingly, the appeal is allowed with consequential relief by setting aside the impugned order.
(Pronounced in court) (Ashok Jindal) Member (Judicial) Sm 3