Custom, Excise & Service Tax Tribunal
M/S. Integra Software Services Pvt. Ltd vs Cce & St, Pondicherry on 16 March, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
ST/40529 - 40533/2015
ST/40535 - 40539/2015
(Arising out of Order-in-Appeal No. 31-35/2014 dated 23.12.2014 and Order-in-Appeal No. 37-41/2014 dated 29.12.2014 passed by the Commissioner of Central Excise (Appeals), Chennai).
M/s. Integra Software Services Pvt. Ltd. : Appellants
Vs.
CCE & ST, Pondicherry : Respondent
Appearance Shri S. Ramachandran, Consultant, for the Appellant Shri S. Mohan, AC (AR), for the Respondent CORAM Honble Shri P. K. Choudhary, Judicial Member Date of Hearing/Decision: 16.03.2016 FINAL ORDER No. 40543-40552 / 2016 Since the issue involved is common in all these appeals, they are taken up together for disposal.
2. The appellant M/s. Integra Software Services Pvt. Ltd., are 100% EOU engaged in providing Pre-publishing Services relating to E-Publishing and are registered under the category of providing Information Technology Software Services. For rendering export of services, the appellant has availed various input services and have claimed refund of service tax paid on the input services for the period July, 2011 to January, 2012 and February, 2012 to June, 2012.
3. The Assistant Commissioner, Puducherry-II, rejected the five refund claims of the appellant assessee arising out of the OIO No. 26 30/2013 dated 19.03.2013, for the period July, 2011 to January, 2012, and the appellant assesse filed five appeals before the Ld. Commissioner (Appeals) against all the above five Order-in-Originals. The Commissioner (Appeals) vide OIA No. 31-35/2014 dated 23.12.2014 dismissed the appeals without going into the merits and held that the same is hit by limitation.
4. The Assistant Commissioner, Puducherry-II, vide OIO No. 65 69/2013 dated 13.06.2013, rejected the refund claims of the appellant assessee, for the period February, 2012 to June, 2012 and the appellant assesse filed appeals before the Ld. Commissioner (Appeals) against all the five Order-in-Originals. The Commissioner (Appeals) vide OIA No. 37 - 41/2014 dated 29.12.2014, allowed refund of cenvat credit availed on audit, advertisement, security and courier services and disallowed cenvat credit availed on maintenance, telephone, consultancy, outsourcing, rent, bank charges, software subscription, software service, foreign outsourcing, training services etc. Being aggrieved by these two impugned orders as above, the appellant assessee is in appeal before this Tribunal.
5. In respect of appeal Nos. C/40529 - 40533/2015, the Ld. representative, Shri S. Ramachandran, Consultant, appearing on behalf of the appellant assessee submits that the delay in filing of appeals, statutory period is 60 days and the delay is only 28 days which is well within the condonable period. The Ld. Consultant further submits that w.e.f. 28.05.2012, the provisions have changed, prior to the amendment the appeal could have been filed within 60 days but w.e.f. 28.05.2012, the period for filing of appeal has been amended to 60 days. Since it was a recent amendment, the Consultant under the bonafide belief that the period for filing the appeal is 90 days has filed the appeal within 88 days from the date of communication of the order. He relies on the following case laws in support of his argument:
1. Hexacom India Ltd. Vs. CCE, Jaipur 2006 (4) STR 99 (Tri.-Del.)
2. Subburaj Cotton Mills Vs. CCE, Madurai 2003 (160) ELT 1096 (Tri.-Chen.)
3. Sairam Engineering works Vs. CCE, Bombay 1997 (91) ELT 608 (Tri.) The Ld. Consultant also filed copies of the orders passed by this Tribunal in the assessees own case in Final Order No. 40449 40452/2013 dated 06.09.2013, in a batch of appeals filed by the Revenue against the order of the Commissioner (Appeals) allowing assessees appeals, the Tribunal has upheld the orders of the Commissioner (Appeals) and rejected the Revenue appeals.
6. On the other hand, the Ld. AR, Shri S. Mohan, AC, submits that the Ld. Commissioner (Appeals) has rightly rejected the assessees appeals. They should have been more vigilant and they have not submitted any cogent reasons for the delay and accordingly, the appeals were rejected. Similarly, vide Final order Nos. 41124 41136/2015 dated 01.09.2015 in a batch of appeals filed by the Revenue against the order of the Commissioner (Appeals), the Tribunal has dismissed all the 13 appeals filed by the Revenue. He also filed copies of the comparative statement in respect of all the appeals and compared to the earlier appeals disposed by the Tribunal. He also filed a copy of the order passed by the Commissioner, Central Excise, Puducherry, wherein at para 2.3, he has observed that the orders passed by the CESTAT, Chennai, referred above have been accepted on 29.11.2013. The Ld. Consultant also filed a copy of the Honble Supreme Court order in the case of Ramala Sahkari Chini Mills Ltd., UP Vs. CCE, Meerut 2016-TIOL-20-SC-CX-LB, wherein the Honble Apex Court has inserted the question as to whether the definition of the term Inputs include Rule 2 (g) of the Cenvat Credit Rules, 2002, is to be understood to include items beyond the six items mentioned specifically in Rule 2 (g). The relevant portion of the said order is reproduced as under:-
We have heard the learned counsels for the parties. We have also read and considered the order dated 29th November, 2010 of this Court referring the matters to a larger bench for a decision on the question as to whether the definition of the term input in Rule 2 (g) of the Cenvat Credit Rules, 2002 is to be understood to include items beyond the six items mentioned specifically in Rule 2 (g). The answer to the question referred, according to us, is self-contained in the order of reference which has referred, inter alia, to a three judge bench decision of this Court in Regional Director, Employees State Insurance Corporation Vs. High Land Coffee Works of P.F. X. Saldanha and Sons & Anr. 1991 (3) SCC 617. There are other decisions of this Court by Co-ordinate Benches (three judge) on the issue which need not be adverted to specifically inasmuch as it has been clearly held in Employees State Insurance Corporation (supra), that the word include in the statutory definition is generally used to enlarge the meaning of the preceding words and it is by way of extension, and not with restriction. We answer the question referred to us in the above manner leaving it for the appropriate bench of this Court to decide on the factual parameters of the case(s) and the entitlement of the assessee(s) to Cenvat credit in the facts of each case.
7. Ld. AR further submits that the Cenvat credit on input services could be allowed only on services which were consumed for providing output services. He further mentions that after the amendment to Rule 2 (i) w.e.f. 01.04.2011, mainly all the services which were provisionally allowed either by the Commissioner (Appeals) or by the Honble Tribunal were subsequently banned /deleted from the list of services eligible for availing cenvat credit on input serices. He further submits that the earlier decisions of the Commissioner (Appeals) and the Honble Tribunal could not be the guiding proceedings in deciding the appeals.
8. After hearing both sides and on considering the facts and circumstances of the case, it would be appropriate to remand these appeals to the Commissioner (Appeals) to decide the issue on merits in view of the amendment to section 2 (l) w.e.f. 01.04.2011. I also find that the Commissioner (Appeals) has power to condone the delay of one month on showing the sufficient cause for not filing the appeal within the period of limitation. Further, the Honble Apex Court has laid down liberal approach for condoning the delay. The Ld. Commissioner (Appeals) in subsequent appeals filed by the appellant assessee has allowed their appeal vide OIA No. 143 -146/2012 dated 25.10.2012 and also vide OIA No. 171 - 183/2011 dated 01.11.2011. Since the matter has been dismissed only on time barred aspect and not on merits, the matter is remitted back to the Ld. Commissioner (Appeals) to be decided on merits. It is made clear that the Ld. Commissioner (Appeals) will not go into the aspect of time bar. Accordingly all the ten appeals are allowed by way of remand.
(Order Dictated and pronounced in the Open Court) (P.K. CHOUDHARY) Judicial Member BB 1