Custom, Excise & Service Tax Tribunal
Indore vs Wm Logistics India Pvt Ltd on 30 September, 2019
1
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
NEW DELHI.
PRINCIPAL BENCH, COURT NO. II
Excise Appeal No. 54143 of 2018-SM
(Arising out of order-in-appeal No. IND-EXCUS-000-APP-276-18-19 dated
20.09.2018 passed by the Commissioner (Appeals), Customs, Central Goods,
Service Tax & Central Excise, Indore).
Commissioner, Customs Central Goods Appellant
Service Tax & Central Excise
Post Bag No. 10, Manik Bagh Road,
Manik Bagh Palace, Indore (M.P.)
VERSUS
M/s WM Logistics India Pvt. Ltd. Respondent
402, NRK Business Park Plot No. B-1, Scheme No. 54, PU-4 Vijay Nagar, Indore (M.P.) APPEARANCE:
Sh. K. Poddar, Authorised Representative for the appellant Sh. Mohammad Irshad Ahmed, C. A. for the respondent CORAM:
HON'BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) FINAL ORDER NO. 51277/2019 DATE OF HEARING: 28.03.2019 DATE OF DECISION: 30.09.2019 ANIL CHOUDHARY:
The Revenue is in appeal against the impugned order dated 20.09.2018 passed by the Commissioner (Appeals) allowing refund of cenvat credit to the respondent-assessee under Rule 5 of Cenvat Credit Rules read with Notification No. 27/2012-CE(NT.
2. The respondent is a 100% subsidiary of WM Logistics LLC, USA. As per the agreement with their parent company, they provided product development support services for collection and disposal activities of WML, USA. The respondent was registered for providing 2 taxable services including „Information Technology Software Service‟. The dispute pertains to the claim for refund filed by the respondent for the period October, 2016 to March, 2017, for refund of accumulated cenvat credit in terms of Rule 5 of the Cenvat Credit Rules, 2004 read with the relevant Notification No. 27/2012-CE (NT) dated 18.06.2012. The respondent claimed that they have exported their output service. The claim was supported by the necessary documents, as required under the relevant notification. The claim for refund was rejected by the original authority, as the respondent failed to submit documentary evidence - „SOFTEX Form‟.
3. Being aggrieved, the respondent preferred appeal before the learned Commissioner (Appeals) who framed the issue as follows:
"7. I find that the issues before me for decision are-
(i) Whether the filing of „Softex Form‟ is mandatory in this case as held by the adjudicating authority?
(ii) In the absence of filing of Softex Form, whether there is substantial compliance of all conditions of Notification No. 27/2012-CE(NT), dated 18.06.2012 as claimed by the Appellant?
(iii) Whether the rejection of refund claim in this case by the adjudicating authority is justified?
4. Learned Commissioner (Appeals) was pleased to allow the appeal by following the Final Order No. 52609/2018 dated 18.07.2018 by this Tribunal in respondent‟s own case being Appeal No. ST/51431/2018-SM and have recorded the following finding:
"10. Therefore, I find that Hon‟ble CESTAT has held that there is no requirement of submission of SOFTEX form in case of appellant. It is also held that there is substantial compliance of export of service and receipt of foreign exchange as evident from the documents like the invoices, FIRC‟s and CA certificate.
10.1 Accordingly Hon‟ble CESTAT has allowed claim of refund under Rule 5 of Cenvat Credit Rules, 2004 filed by the appellant in above cases on the basis of documents submitted with the refund claims.3
11. In present case, I find that the appellant has filed refund claim of cenvat credit on input services used in export of services, under Rule 5 of Cenvat Credit Rules, 2004 alongwith similar set of documents as that of their previous refund claims. I also find that present refund claims has also been rejected on similar grounds as that of their previous refund claims.
11.1 In the circumstances I find that Hon‟ble CESTAT Final Order No. 52609/2018 dated 18.07.2018 & Final Order No. 52907/2018 dated 27.08.2018 are binding on me as judicial discipline as per ratio laid down by Hon‟ble Supreme court vide judgment in case of M/s Kamlakshmi Finance Ltd. [1991 (550) ELT 433 (SC)].
12. Accordingly, I find that in view of CESTAT Final Order No. 52609/2018 dated 18.07.2018 & Final Order No. 52907/2018 dated 27.08.2018, the impugned adjudication order dated 30.05.2018 is not legal, proper and correct. Therefore it is liable to be set aside. Held accordingly.
12.1 Therefore I find that in present case, filing of SOFTEX Form is not mandatory requirement to prove the export of services. I find that on the basis of available documents on record, the export of services and receipt of foreign exchange is sufficiently evident as held by Hon‟ble CESTAT in above case (supra). Accordingly, I find that there is sufficient compliance of conditions of notification No. 27/2012-CE(NT) dated 18.06.2012. Further it is settled law that once the substantial compliance of export of services/ goods and recei8pt of foreign exchange has been established, the procedural issues if any shall not vitiate the fund claim. Hence, I find that the impugned refund claim filed by the appellant is admissible to them in terms of Rule 5 of Cenvat Credit Rules, 2004 read with Section 11B of Central Excise Act, 1944.
12.2 Therefore, I find that impugned adjudication order passed by the adjudicating authority is not legal, proper and correct and hence it is liable to be set aside. Held accordingly.
13. In view of above discussion and my findings, the appeal filed by the appellant is allowed and the impugned order is set aside."
5. Being aggrieved by the order-in-appeal, the Revenue is in appeal on the ground that, filing of SOFTEX Form is the mandatory requirement as per guidelines issued by RBI. Moreover, the Additional Director, STPI, Indore vide letter dated 28.12.2016 also confirmed that in case of offshore export of goods/ services through data communication link, it necessary to declare the same through SOFTEX Form, as per the RBI guidelines. Accordingly, he prays for allowing the Revenue appeal.
6. Heard Shri Mohammad Irshad Ahmed, ld. Counsel appearing on behalf of the respondent-assessee. He states that there is no error in 4 the impugned order in appeal, as the learned Commissioner (Appeals) have followed the order of this Tribunal, in allowing the appeal which is binding on the Court below. He further points out that under similar facts and circumstances for the period April, 2016 to September, 2016 also, this Tribunal in respondent‟s own appeal by subsequent Final Order No. 52902/2018 dated 27.08.2018, under similar facts and circumstances have allowed the appeal in favour of the assessee and against the Revenue. Further, these orders of the Tribunal have attained finality, as Revenue has not appealed against such final orders.
7. Considering the rival contentions, the Bench enquired from the learned Authorised Representative if Revenue has filed any appeal, to inform accordingly. In response thereto, by communication dated 29.03.2019 signed by the Additional Commissioner, CGST&CE Hqrs. Indore, have informed that both the Final orders referred to hereinabove passed by this Tribunal have been accepted by the competent authority, on monetary ground only. In this view of the matter, I find no merit in this appeal. The appeal is accordingly rejected. The respondent is entitled to consequential benefit, in accordance with law.
(Pronounced on 30.09.2019).
(Anil Choudhary) Member (Judicial) Pant