Custom, Excise & Service Tax Tribunal
M/S Sopariwala Exports Pvt Ltd vs Commissioner Of Central Excise on 29 September, 2016
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad ~~~~~ Appeal No : ST/85/2009 (Arising out of OIA-COMMR-A-/08/VDR-I/2009 dated 27/01/2009 passed by Commissioner (Appeals) of Central Excise, CUSTOMS (Adjudication)-VADODARA-I) M/s Sopariwala Exports Pvt Ltd : Appellant (s) Versus Commissioner of Central Excise, CUSTOMS (Adjudication)-VADODARA-I : Respondent (s)
Represented by:
For Appellant (s) : Shri S. R. Dixit and Shri B. M. Suthar, Advocates For Respondent (s): Shri Naresh Satwani, Authorised Representative For approval and signature :
Mr. P. M. Saleem, Hon'ble Member (Technical)
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 CORAM :
Mr. P. M. Saleem, Hon'ble Member (Technical) Date of Hearing / Decision : 29.09.2016 ORDER No. A/11064 / 2016 dated 29.09.2016 Per : Mr. P. M. Saleem Heard both sides and perused the records.
2. The issue involved herein is regarding eligibility of refund pertaining to goods which were exported earlier at which time there was no eligibility for refund, and refund application was submitted on a subsequent date by which time refund became eligible, on the ground that on the date of filing the refund claim they were eligible for the refund.
3. At the outset itself, the Ld. Counsel for the appellants submits that the Tribunal Vide Final Order No. A/10191-10192/2013 dated 11.01.2013 [2013-TIOL-747-CESTAT-AHM], in their own case, has held the issue in their favour, as follows:-
As regards second issue, ld. Counsel relies upon the decision of the Tribunal in the case of East India Minerals Ltd. [2012 (27) S.T.R. 18 (Tri-Kolkatta)] wherein it was held that the refund claim of service tax should be allowed, since on the date of filing claims the requirement of notification is satisfied. This means that the date of export is not relevant. It was also submitted that the Commissioner (A) had allowed the refund in a similar case earlier, but in the impugned order that decision was not followed on the ground that appeal has been filed before the Tribunal. Since the issue is squarely covered by the decision of the Tribunal as cited by the ld. Counsel, I find that I am bound to follow the decision and accordingly it has to be held that appellant is eligible for the refund.
4. The Ld. Counsel submits that the present appeal is on the same issue for a subsequent period. He contends that the above decision is binding and therefore the appeal may be allowed. He relied upon the decision of the High Court of Gujarat in the case of Commissioner of Central Excise & Customs vs. Mundra Port & Special Economic Zone Ltd. [2011 (21) S.T.R. 361 (Guj.)], wherein Honble High Court held as follows:-
5.?As can be seen from the impugned order of the Tribunal, the Tribunal has noted that Commissioner (Appeals), vide Order-in-Appeal No. 346/2007/Commr(A)/RAJ dated 30-11-2007 has allowed the credit of service tax paid on mobile phones, rent-a-cab, CHA and surveyor charges and professionals and that the said order has not been challenged by revenue and as such has attained finality. The Tribunal has, accordingly, held that credit in respect of service tax paid on the aforesaid was available to the respondent. Since, the controversy as regards admissibility of CENVAT credit in relation to mobile phones, rent-a-cab, CHA and surveyor charges and professionals in respect of the respondent had already been subject matter of challenge in relation to another period and had been held in favour of the respondent by Commissioner (Appeals), which decision has not been carried further by the assessee, the Tribunal was justified in relying upon the same and deciding in favour of the respondent. It is settled legal position as held by the Apex Court in the case of Radhasoami Satsang v. CIT - (1992) 193 ITR 321 (S.C.) (though in the context of the Income-tax Act), that strictly speaking, res judicata does not apply to income-tax proceedings. Again, each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and the parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year. The principle enunciated by the aforesaid decision would be squarely applicable to the facts of the present case inasmuch as in the case of the respondent itself, Commissioner (Appeals) has held that it is entitled to credit of the service tax paid by it on mobile phones, rent a cab, CHA and Surveyor charges and professionals. Hence, in absence of any material change justifying the revenue to take a different view of the matter, the question could not have been reopened and a different and contradictory stand could not have been taken. In the circumstances, no infirmity can be found in the impugned order of the Tribunal in relation to admissibility of CENVAT credit in relation to mobile phones, rent-a-cab, CHA and surveyor charges and professionals.
6.?Insofar as the demand relates to the credit of duty on air-conditioners, the Tribunal upon appreciation of the evidence on record has found as a matter of fact that the assessee is entitled to credit of duty paid on air-conditioners. Learned Counsel for the appellant is not in a position to point out any infirmity in the findings of fact recorded by the Tribunal. In the circumstances, the conclusion arrived at by the Tribunal being based upon a finding of fact, in absence of any challenge to the said finding of fact on the ground of perversity, the same does not give any rise to any question of law.
7.?Insofar as the principle laid down by the Apex Court in case of C. K. Gangadharan (supra) is concerned, there can be no dispute as regards the general proposition of law enunciated by the Apex Court. However, the Apex Court has not laid down that in case of the same assessee, if identical transaction for earlier period has not been taxed either at the original stage or after being assessed to tax has been held to be not taxable in appeal proceedings, it would be open to revenue to re-agitate the same issue without either challenging the earlier order of the appellate authority or pointing out any difference in facts and circumstances of the case or position in law having undergone change. This salutary principle is not based on the principle of res judicata but is founded on principle of judicial comity and consistency in adopting approach to a particular issue in case of the same assessee, revenue being a party in the proceedings both relatable to the earlier period and the subsequent period. In such circumstances, revenue cannot be permitted to place reliance on the aforesaid principle laid down by the Apex Court in the case of C. K. Gangadharan (supra) by stating that the assessee has to show mala fide. It is not a case of any allegation of mala fide, but as noted, a question of judicial discipline of comity between the same parties in the facts and circumstances of the case and the provisions of law remaining consistent.
5. On the other hand, the Ld. Authorised Representative for Revenue submits that the earlier decision of the Tribunal in their own case (supra) relied upon the decision of the Tribunal in the case of East India Minerals Ltd (supra) which in turn relied upon the decision of the Tribunal in the case of WNS Global Services (P) Ltd. Vs. Commissioner of Central Excise, Mumbai [2008 (10) S.T.R. 273 (Tri.-Mumbai)]. The Ld. Authorised Representative agued that the said decision in WNS Global Services (P) Ltd. (supra) was distinguished by the Tribunal in the recent decision of Gujarat Ambuja Export Ltd. Vs. Commissioner of Customs & Central Excise, Amravati [2016 (41) S.T.R. 109 (Tri.-Mumbai)]. The Ld. Authorised Representative therefore contends that the earlier decision of the Tribunal in their own case is no more binding.
6. On careful consideration of the arguments of both sides and examination of the records, we find that the issue in contention here has been examined in detail by the Tribunal in the appellants own case (supra), and in the case of East India Minerals Ltd vs. Commissioner of Central Excise, Customs & Service Tax, Bhubaneswar [2012 (27) S.T.R. 18 (Tri.-Kolkata)]. The Tribunal has also examined the issue in WNS Global Services (P) Ltd. (supra). The decision in the WNS Global Services (P) Ltd. Case (supra) was upheld by the Honble High Court of Bombay [2011 (22) S.T.R. 609 (Bom.)].
7. Per contra, the decision of the Tribunal in the case of Gujarat Ambuja Export Ltd. (supra) has not examined that the issue in contention in detail. Therefore, the contention of the Ld. Authorised Representative for Revenue cannot be accepted. We find that the issue is settled in favour of the appellants by the above decisions, especially by the decision in their own case. The Honble jurisdictional High Court of Gujarat in the case of Mundra Port & Special Economic Zone Ltd. (supra) has laid down the principle that the earlier decision by the Tribunal in their own case, on the same issue which has reached finality would be binding. At this juncture, the Ld. Counsel for the appellants fairly submits that in relation to the refund of C&F charges for Rs. 3,380/- would not be eligible to the appellants, as the provisions enabling refund of the same was made effective from 01.04.2008 only, whereas the instant refund claim is for a period prior to the said date.
8. In view of the above, the appeal is bound to succeed to the above extend and we hold accordingly.
9. Appeal is disposed of in the above terms, with consequential relief.
(Order dictated & pronounced in the open Court) (P. M. Saleem) Member (Technical) G.Y. ??
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