Custom, Excise & Service Tax Tribunal
Aditya Birla Minacs Worldwide Ltd vs Commissioner Of Service Tax ... on 12 May, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: ST/514/2010-SM [Arising out of Order-in-Appeal No. 151/2009 dated 14/12/2009 passed by the Commissioner of Central Excise (Appeals-II), Bangalore.] For approval and signature: HON'BLE SHRI B.S.V.MURTHY, TECHNICAL 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 ADITYA BIRLA MINACS WORLDWIDE LTD 3RD FLOOR, MILLENNIUM TOWERS, ITPL ROAD, BROOKEFIELDS, BANGALOARE Appellant(s) Versus Commissioner of Service Tax BANGALORE-SERVICE TAX 1ST TO 5TH FLOOR, TTMC BUILDING, above BMTC BUS STAND,DOMLUR BANGALORE 560 071. KARNATAKA Respondent(s)
Appearance:
None For the Appellant Mr. Pakshi Rajan, Addl. Commissioner (AR) For the Respondent Date of Hearing: 27/03/2015 Date of Decision:
CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER Final Order No. 21110 / 2015 Per : B.S.V.MURTHY The appellant is engaged in the activity of business process outsourcing. These activities are liable to service tax under Business Auxiliary Service/Business Support Service. Appellant filed rebate claim for refund of service tax paid on input services used in export of output services of Rs.22,08,329/-. The claim was made under Notification No.12/2005-ST dated 19.4.2005. The Notification was issued under Rule 5 of Export of Service Rules, 2005. The Revenues claim has been rejected on the ground that it is time barred in terms of Section 11B of Central Excise Act, 1944 made applicable to service tax matters vide Section 83 of Finance Act, 1994 that the claim should have been made separately for the two registered premises in the absence of centralized registration whereas the claim has been preferred by the appellant were not registered under the jurisdiction of service tax jurisdiction, Bangalore; the export invoices do not contain the details of services provided, the classification and prior declaration about export of taxable service has not been provided; and there is no nexus between several input services and services exported.
2. As regards limitation under Section 11B, the appellant relied upon the decision of the Honble High Court of Madras in the case of Dorcas Market Makers Pvt. Ltd. : 2012 (281) E.L.T. 227 (Mad.). In this case, it was held that time limit under Section 11B of Central Excise Act, 1944 was originally prescribed in Notification No.41/94-CE but in the subsequent Notification No.19/2004-CE prescribing procedure for obtaining rebate, this was allowed. Honble High Court decided that this omission was conscious since all other conditions for obtaining rebate were retained in the subsequent Notification and therefore rebate could not be rejected on the ground of limitation.
3. The decision was rendered in the case of Central Excise but nevertheless in our opinion it is applicable to the present case also. Rule 18 of Central Excise rules reads as under:
Rule 18. Rebate of duty Where any goods are exported, the Central government may, by Notification, grant rebate of duty paid on such excisable goods or duty paid on materials used in the manufacture or processing of such goods and the rebate shall be subject to such conditions or limitations, if any, and fulfillment of such procedure, as may be specified in the Notification. Explanation Export includes goods shipped as provision or stores for use on board a ship proceeding to a foreign port or supplied to a foreign going aircraft. Rule 5 of export of service rules reads as under:
Rebate of Service tax:
5. Where any taxable service is exported, the Central Government may, by Notification, grant rebate of service tax paid on such taxable service or service tax or duty paid on input services or inputs, as the case may be, used in providing such taxable service and the rebate shall be subject to such conditions or limitations, if any, and fulfillment of such procedure, as may be specified in the Notification. It can be seen that both the Rules are pari materia except for substitution of taxable service in place of goods. Therefore I consider that the decision of the Honble High Court of Madras would apply to the facts of this case as regards limitation.
4. As regards the second ground that the claim should have been made separately for two registered premises, the decision in the case of M/s. Biocon Ltd.: 2014-TIOL-1646-HC-KAR-CX has been relied upon. In the case of service provider, unlike the case of Central Excise the service could be received anywhere. There is less rigidity as regards CENVAT credit availment as far as input services are concerned. It was submitted that original application for registration was made for both the premises and filed with the department on 25.4.2005 and the single registration was issued by the Revenue only. Appellant had also filed consolidated ST-3 returns for both the premises. Moreover, the rebate claim applied for 2006-07 for both the premises was also granted in part.
These submissions would show that these grounds of separate registration and jurisdiction cannot be considered as valid in this case.
5. Another ground taken is that export invoice do not contain the details of service provided and therefore Rule 4A of Service Tax Rules have not been followed.
As regards this ground, appellants have submitted that benefit cannot be denied on the ground of technical lapses.
6. In my opinion, if the details of service provided are available and classification can be done on that basis and if the services have been exported, that would be sufficient for the purpose of granting rebate. While granting rebate what is required to be seen is whether the output service has been exported or not and whether input services have been used or not. In any case, the service exported is not liable to tax. Therefore as claimed by the appellants, certain omissions in terms of Rule4A of Service Tax Rules could not come in the way of sanction of rebate in respect of input services if the appellant is able to show that there is an output service and the same has been exported.
7. As regards prior declaration, the claim has been rejected on the ground that no separate declarations were filed in respect of two registered premises. On this issue I have already held that a consolidated ST-3 returns in respect of two registered premises should be acceptable.
8. The next issue is nexus between input services and the services exported.
9. Another ground is that there was difficulty in correlating the input services and FIRC received for having exported the services. It is submitted that appellant had submitted the details of export turnover, exempted/domestic turnover and input services received and used for providing export services were furnished in reply to the show-cause notice. It was also submitted that appellants had exported entire services out of India and were not given an opportunity to correlate the input services in the FIRC received for exports.
10. The above discussion would show that the nexus between input and output services and correlation of FIRC are required to be considered afresh and this can be done by the original authority. Nexus can be considered in the light of Apotex Research (Interim Order): 2014-TIOL-1836-CESTAT-BANG., even though the issue as to whether nexus is required to be considered in the case of rebate itself would need a consideration. I consider that it would be proper to remand the issue to the original authority to consider these two aspects afresh after getting necessary details from the appellants. The appeal is disposed of in above terms.
(Order pronounced in open court on ..) B.S.V.MURTHY TECHNICAL MEMBER rv 5