Custom, Excise & Service Tax Tribunal
Mahindra Reva Electric Vehicles Pvt. ... vs Commissioner Of Central Excise, ... on 27 May, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/913/2011, E/914/2011-SM [Arising out of Orders-in-Appeal No. 351 & 352/2010 dated 31.12.2010 passed by the Commissioner of Central Excise, Bangalore] For approval and signature: HON'BLE SHRI S.S. GARG, JUDICIAL MEMBER 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? Yes 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Mahindra Reva Electric Vehicles Pvt. Ltd. (formerly known as Reva Electric Car Co. Pvt. Ltd.) 122E, Bommasandra Industrial Area Bangalore 560 099 Appellant(s) Versus Commissioner of Central Excise, Bangalore - I C.R. Building, Queens Road, P.B. No. 5400, Bangalore 560 001 Karnataka Respondent(s)
Appearance:
Shri Anirudha Naik, Advocate For the Appellant Shri Mohd. Yusuf, AR For the Respondent Date of Hearing: 25/05/2016 Date of Decision: 27/05/2016 CORAM:
HON'BLE SHRI S.S. GARG, JUDICIAL MEMBER Final Order Nos. 20366-20367/ 2016 Per: S.S. GARG The appellant has filed these two appeals against the Order-in-Appeal dated 31.12.2010. Since in both the appeals identical issue is involved and impugned order is one, therefore both the appeals are being disposed of by this order. These appeals are directed against the order dated 31.12.2010 whereby the learned Commissioner (Appeals) has dismissed both the appeals of the appellant by upholding the Order-in-Original.
2. Briefly the facts of the present case are that the appellants are engaged in the manufacture of Battery operated electric cars falling under Chapter sub heading 8703 90 10 of the first schedule to the Central Excise Tariff Act 1985. The final product of the appellant is fully exempted by virtue of Notification No. 6/2006 dated 01.03.2006 as amended by Notification 6/2008-CE dated 01.03.2008. The appellants are availing the facility of cenvat credit on inputs, input services and capital goods under Cenvat Credit Rules 2004. Appellant filed two applications for refund of service tax in terms of Notification No. 41/2007-ST dated 06.10.2007 as amended vide Notification No. 17/2008-ST dated 19.02.2008 for the quarter as detailed below:
Sl. No. Refund filed for the Quarter Amount claimed (in Rs.) Order-in-Original Amount Sanctioned/ Rejected (in Rs.) 1 July 08 to September 08 1,00,511/- 348/2009-R dated 25.11.09 Rejected:
1,00,511/-
2 October 08 to December 08 79,632/- 345/2009-R dated 20.11.09 Sanctioned: 13,448/- Rejected: 66,184/-
3. The service tax refund of 1,00,511/- (Rupees One Lakh Five Hundred and Eleven only) claimed by the appellant for the quarter July to September has been rejected by the original authority on the ground that the invoices issued by the Courier/Custom House Agent do not satisfy the conditions specified in the Notification 41/2007 inasmuch as they do not contain any of the particulars mentioned in the Notification and also for failure to produce any evidence to link the use of the said services in relation to export of goods. Further with reference to the service tax refund of Rs. 79,632/- (Rupees Seventy Nine Thousand Six Hundred and Thirty Two only) claimed by the appellant for the quarter October 2008 to December 2008, an amount of Rs. 13,448/- (Rupees Thirteen Thousand Four Hundred and Forty Eight only) has been sanctioned in respect of goods exported through M/s. Freight Express International Pvt. Ltd. and the balance of Rs. 66,184/- (Rupees Sixty Six Thousand One Hundred and Eighty Four only) claimed on the invoices issued by M/s. Sea-Air Logistics (I) Pvt. Ltd. and M/s. Vani Associates has been disallowed by the impugned order for not fulfilling the conditions as specified in the Notification. Aggrieved by the impugned order the appellant has filed the present appeals.
4. Learned counsel for the appellant submitted that the invoices not containing the details as mentioned in Notification No. 41/2007 is only a procedural formality to be complied with whereas the substantial condition i.e. export of goods has taken place and the documents evidencing the said transactions were also submitted before the lower authorities and further the appellant furnished a certificate obtained from M/s. Sea-Air Logistics (I) Pvt. Ltd. and M/s. Radius furnishing all the required details. But the learned Commissioner (Appeals) has not appreciated the facts and rejected the refund application merely on procedural lapse. He further submitted that substantive benefits/right under the Scheme/Notification cannot be denied on the ground of mere procedural lapses and for this submission he relied upon the following authorities:
a) ONGC Ltd. V. CCE [2006 (201) E.L.T. 321 (S.C)
b) CCE, Bhavnagar V. Saurashtra Chemicals Ltd. [2007 (212) E.L.T. 7 (S.C)] 4.1. Learned counsel for the appellant further submitted that the impugned order is not sustainable in law as the learned Commissioner has not applied her mind independently and simply followed the order of Assistant Commissioner and without considering the case laws cited by the appellant. He further submitted that it is undisputed that during the relevant period i.e. July 2008 to September 2008 the appellant has paid service tax in respect of services of CHA as well as Courier Agency in relation to export of finished goods. He also submitted that refund has been rejected on the ground that appellant has not satisfied the authorities regarding the fulfillment of the conditions specified in the Notification No. 41/2007-ST dated 06.10.2007 as amended. With regard to the Service Tax paid to Courier Agency, the refund was rejected because the appellant failed to fulfill the conditions that the receipt issued by the Courier Agency did not specify the Importer-Exporter Code no. of exporter, export invoice no., nature of courier, destination of the courier including the name and address of the recipient of the courier and the exporter did not produce evidence to link the use of the Courier Service to export goods and further in relation to CHA refund was denied on account of non-fulfillment of the conditions specified in Notification 41/2007. On the other hand the learned AR reiterated the findings in the impugned order and submitted that the appellant failed to fulfill the conditions of the Notification and therefore both the authorities below have rightly rejected the refund.
5. I have heard the learned counsel for both the parties and perused the records as well as the Notification No. 41/2007-ST dated 06.10.2007 as amended. Learned counsel for the appellant submitted that appellant produced a certificate issued by the CHA along with the details which clearly establish the linkages between the service tax paid and the export of goods but the authorities below refused to consider the same and they have simply rejected the refund claim by observing that the appellants have not fulfilled the conditions of the Notification. After going through the details given by the appellant along with the certificates of the CHA, I find that the appellant has furnished sufficient details which if examined can establish the link proving to the fact of export of goods by the said CHA. This exercise has not been done by the lower authorities. Therefore I find substance in the submission of the learned counsel for the appellant and I am of the considered opinion that the impugned orders are not sustainable in law and therefore I set aside the orders and remand both the cases to the original authority with the direction to examine the details furnished by the appellant to prove the payment of service tax to the CHA and Courier Agency for export of finished goods. The adjudicating authority shall afford opportunity to the appellant to produce any documents evidence in support of their submission. Consequently both the appeals are allowed by way of remand.
(Order pronounced in Open Court on )
(S.S.GARG)
JUDICIAL MEMBER
iss