Custom, Excise & Service Tax Tribunal
Astrazeneca India Pvt Ltd vs Commissioner Of Central Tax, Bangalore ... on 30 September, 2024
Service Tax Appeal Nos. ST/20198 to 20208/2021
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
BANGALORE
REGIONAL BENCH - COURT NO. 2
Service Tax Appeal No. 20198 of 2021
(Arising out of Order-in-Appeal No. 105 - 116/2020-21 CT dated 16.12.2020
passed by the Commissioner of Central Tax (Appeals -II), Bangalore.)
M/s. Astra Zeneca India Pvt. Ltd.
Block N1, 5th Floor, Manyata Embassy
Business Park, K R Puram, Hobli,
Rachenahalli Village,
Bengaluru - 560 045. ........Appellant(s)
VERSUS
Commissioner of Central Tax,
Bangalore North Commissionerate,
HMT Bhavan, Bellary Road,
Bangalore - 560 032 .........Respondent
WITH
(i) Service Tax Appeal No. 20199 of 2021 ( M/s. Astra Zeneca India Pvt. Ltd. vs. Commissioner of Central Tax) (Arising out of Order-in-Appeal No. 105-116/2020-21 CT dated 16.12.2020 passed by the Commissioner of Central Tax (Appeals-II), Bangalore.)
(ii) Service Tax Appeal No. 20200 of 2021 ( M/s. Astra Zeneca India Pvt. Ltd. vs. Commissioner of Central Tax) (Arising out of Order-in-Appeal No. 105-116/2020-21 CT dated 16.12.2020 passed by the Commissioner of Central Tax (Appeals-II), Bangalore.)
(iii) Service Tax Appeal No. 20201 of 2021 ( M/s. Astra Zeneca India Pvt. Ltd. vs. Commissioner of Central Tax) (Arising out of Order-in-AppealNo. 105-116/2020-21 CT dated 16.12.2020 passed by the Commissioner of Central Tax (Appeals-II), Bangalore.)
(iv) Service Tax Appeal No. 20202 of 2021 ( M/s. Astra Zeneca India Pvt. Ltd. vs. Commissioner of Central Tax) (Arising out of Order-in-Appeal No.105-116/2020-21 CT dated 16.12.2020 passed by the Commissioner of Central Tax (Appeals-II), Bangalore.)
(v) Service Tax Appeal No. 20203 of 2021 ( M/s. Astra Zeneca India Pvt. Ltd. vs. Commissioner of Central Tax) (Arising out of Order-in-Appeal No. 105-116/2020-21 CT dated 16.12.2020 passed by the Commissioner of Central Tax (Appeals -II), Bangalore.) Page 1 of 13 Service Tax Appeal Nos. ST/20198 to 20208/2021
(vi) Service Tax Appeal No. 20204 of 2021 ( M/s. Astra Zeneca India Pvt. Ltd. vs. Commissioner of Central Tax) (Arising out of Order-in-Appeal No. 105 - 116/2020-21 CT dated 16.12.2020 passed by the Commissioner of Central Tax (Appeals -II), Bangalore.)
(vii) Service Tax Appeal No. 20205 of 2021 ( M/s. Astra Zeneca India Pvt. Ltd. vs. Commissioner of Central Tax) (Arising out of Order-in-Appeal No. 105 - 116/2020-21 CT dated 16.12.2020 passed by the Commissioner of Central Tax (Appeals -II), Bangalore.)
(viii) Service Tax Appeal No. 20206 of 2021 ( M/s. Astra Zeneca India Pvt. Ltd. vs. Commissioner of Central Tax) (Arising out of Order-in-Appeal No. 105 - 116/2020-21 CT dated 16.12.2020 passed by the Commissioner of Central Tax (Appeals -II), Bangalore.)
(ix) Service Tax Appeal No. 20207 of 2021 ( M/s. Astra Zeneca India Pvt. Ltd. vs. Commissioner of Central Tax) (Arising out of Order-in-Appeal No. 105 - 116/2020-21 CT dated 16.12.2020 passed by the Commissioner of Central Tax (Appeals -II), Bangalore.)
(x) Service Tax Appeal No. 20208 of 2021 ( M/s. Astra Zeneca India Pvt. Ltd. vs. Commissioner of Central Tax) (Arising out of Order-in-Appeal No. 105 - 116/2020-21 CT dated 16.12.2020 passed by the Commissioner of Central Tax (Appeals -II), Bangalore.) Appearance:
Mr. Raghavendra. C.R, Advocate for the Appellant. Mr. Rajesh Shastry, Superintendent (AR) for the Respondent. Coram:
Hon'ble Mr. P.A. Augustian, Member (Judicial) Hon'ble Mr. Pullela Nageswara Rao, Member (Technical) Final Order Nos. 21557 - 21567 / 2024 Date of Hearing:01.04.2024 Date of Decision:30.09.2024 Per: Pullela Nageswara Rao The issue in the present 11 (eleven) appeals is regarding refund of unutilized CENVAT credit under Rule 5 of the CENVAT Credit Rules, Page 2 of 13 Service Tax Appeal Nos. ST/20198 to 20208/2021 2004 read with Notification No. 5/2006 dated 14.03.2006 (superseded by Notification No.27/2012-CE(NT), dated 18.06.2012 of the input services used in the provision of output services for the period from April 2011 to March 2014.
2. The brief facts are M/s. Astra Zeneca India Pvt., Ltd., the Appellant a 100% EOU unit, had submitted 12 (twelve) refund claims for the above said CENVAT credit for the period from April 2011 to June 2014. As per the Appellant they had submitted the required evidence by way of export invoices, FIRC, input invoices etc., as part of the refund application. However, the initial refund claim applications were rejected by the Adjudicating Authority vide 11 (eleven) Orders-in-Original.
Aggrieved by said orders, appeals were filed before the Appellate authority. Commissioner (Appeals) considered the issue in detail and as per the common Order-in-Appeal No. 240-250/2017 dated 25.04.2017, held that; "The issues involved in the appeals are decided, in principle and the matters are remitted to the lower Authorities for verification of documents and re-consideration and quantification of the refunds accordingly. The appellant shall submit the requisite documents to the Lower Authorities. The Orders-in-Original are modified accordingly, and the Appeals are disposed of in the above terms".
3. Accordingly, the lower authority has informed the appellant to submit copies of all the 11 (eleven) refund orders along with the relevant records. Accordingly, the appellant submitted fresh refund applications on 28.06.2009. Thereafter an opportunity for personal hearing was extended and the adjudicating authority rejected the refund applications on the ground that the refund applications were not filed within the time limit from the date of receipt of the order of the Page 3 of 13 Service Tax Appeal Nos. ST/20198 to 20208/2021 Commissioner (Appeals) as per the provisions of section 11B of Central Excise Act, 1994 made applicable to Service Tax. Aggrieved by the said order, appeals were filed before the Commissioner (Appeals) and Commissioner (Appeals) as per the impugned Orders-in-Appeal No. 105-116/ 2010-21 dated 16.012.2020, rejected the appeals. Aggrieved by said order, present 11 (eleven) appeals were filed before this Tribunal.
4. The Learned Counsel for the Appellant during the hearing submitted that the allegation regarding delay in submission of the refund application is prima facie, unsustainable. Appellant initially, had submitted refund application before the proper authority in time and, when a show cause notice was issued, appellant had made detailed reply and also produced sufficient documents to substantiate the claim made by the Appellant. Learned Counsel for the Appellant drew our attention to the show cause notice dated 23.05.2012 issued by the respondent and the detailed reply submitted by the appellant vide reply dated 30.07.2012. Though the appellant is a 100% EOU, alleging that the input service used by the appellant on which CENVAT credit has been availed/utilized do not have any nexus with the provisions of output services, certain objections were raised by the respondent. Learned Counsel for the Appellant drew our attention to the reply to the said show cause notice submitted by the appellant and further submitted that the appellant had furnished entire details to substantiate the claim made by the Appellant. The learned Counsel further submitted that as regards, whether the export of services qualify as an export of service as per the provisions of Export of Service Rules, 2005, the learned Counsel submitted that the investigation is unnecessary and not Page 4 of 13 Service Tax Appeal Nos. ST/20198 to 20208/2021 warranted at this stage as neither the CENVAT Credit Rules, 2004 nor Notification No. 5/2006 dated 14.03.2006 (superseded by Notification No.27/2012-CE(NT), dated 18.06.2012), require that assessee has to bring out the proof of export of services. Further the certificate of Chartered Accountant (CA) is sufficient to prove that the correctness of the amount determined and claimed as refund of service tax. As regards production of the consumption of exported service as prescribed under Rule 3(2) of Export of Service Rules, 2005. Learned Counsel submitted that the said condition was deleted from the Export of Service Rules, 2005 with effect from 27.02.2010. As regards the objection related to non-correlation of the services exported and the invoice details, the learned Counsel submitted that the factum of receipt of funds is not being disputed, specific invoice details are not necessary when amounts were received in bulk, also. Thus, the learned Counsel submitted that each and every objection made by the appellant were answered. However, without considering the above, Adjudication authority as per Orders-in-Original, held that in the absence of proper correlation, service rendered by the appellant does not merit consideration as services exported in terms of Rule 3(2) of the Export Service Rules, 2005. Aggrieved by said order, appeal was filed before the Commissioner (Appeals) and after considering the entire issue in detail, Appellate authority vide order in Appeal No. No. 240-250/2017 dated 25.04.2017, remanded the matter for de-novo adjudication with the following directions, "The issues involved in the appeals are decided, in principle and the matters are remitted to the lower Authorities for verification of documents and re-consideration and quantification of the refunds, accordingly. The appellant shall submit the Page 5 of 13 Service Tax Appeal Nos. ST/20198 to 20208/2021 requisite documents to the Lower Authorities. The Orders-in-Original are modified accordingly, and the Appeals are disposed of in the above terms".
5. Learned Counsel further submitted that during personal hearing on 01.10.2019, with regard to the de-nova proceedings the Appellant had submitted copies of the refund claims as directed by the Adjudication Authority and also produced the details of the payment and other documents in support of the same. Learned Counsel drew our attention to the details submitted by the Appellant during the personal hearing produced as Annexure-11. As regards the correlation between FIRC and export invoices, learned Counsel submitted that at the time of personal hearing they have submitted the copy of self-certified statement showing details of correlation between export invoices and FIRCs, which were enclosed for each of the refund claim. Regarding Bank realization certificate, the learned Counsel submitted that copies of the FIRCs and correlation between FIRCs and export invoices was submitted at the time of personal hearing again. As regards certificate from the Statutory Auditor, the Appellant had submitted Chartered Accountant certificate at the time of filing the claims and same are again submitted while making submissions during personal hearing. As regards other findings related to time-bar issue, the issue was initially considered by the Commissioner (Appeals) and only after considering the entire issue, it was remanded. It is well settled that relevant date to be reckoned for the purpose of filing refund under Rule 5 of the CENVAT Credit Rules, 2004 shall be end of the quarter by which FIRCs for the export are received by the appellant. The learned Counsel also drew our attention to the claims and realization against each claim. Page 6 of 13
Service Tax Appeal Nos. ST/20198 to 20208/2021
6. As regards the invoices, the learned Counsel drew our attention to the submissions made during personal hearing and submitted that the copies of the invoices were already submitted and copies were also enclosed, while appearing for personal hearing. As regards the payment made to vendors, Annexure to Chartered Accountant certificate list out each of the invoices of the vendor and also indicate date of payment against each invoice. This statement is also certified by Chartered Accountant. Therefore, the same would suffice to establish that payment to vendors have been made. As regarding value of DTA services, the issue was also considered by the Appellate authority and he further submitted that R&D services unit/ section has earned income from renting of part of its premises and has remitted service tax on the said ground. As regards the discrepancy in CENVAT amount for the quarter July 2012 to September 2012, though it is admitted that the refund claim shows CENVAT balance as Rs.79,45,856/- whereas ST-3 shows the credit as Rs.73,21,042/-. The original authority should not have rejected the refund claim on this ground but should have processed considering the lowest among both. The refund could be processed on the basis of the credit shown in the ST-3 return. As regarding reversal of credit for the period from October 2011 to December 2011, the appellant had produced proof of the reversal of the credit for the relevant period.
7. Learned counsel relied on the following case-laws;
a. Final Order No. 20673/2021 dated 16.08.2021 in ST Appeal No. 20147 of 2021 b. SPIC Ltd. Vs. Commissioner of Customs, Chennai - 2007 (209) E.L.T. 91 (Tri.-Chennai) affirmed by Madras High Court in 2015 (318) E.L.T. A178 Page 7 of 13 Service Tax Appeal Nos. ST/20198 to 20208/2021 c. BASF India Ltd. Vs. CCE, Mangalore - 2021-TIOL-172- CESTAT-BANG.
d. BNP Paribas Global Securities Operations Private Limited Vs. The Assistant Commissioner of Service Tax - 2018 (11) G.S.T.L. 28 (Mad.) e. Gil Shared Services Pvt. Ltd. Vs. Asstt. Commr. of GST & C.Ex., Chennai - 2019 (29) GSTL 693 (Mad.) f. Ranbaxy Laboratories Ltd. Vs. Union of India-2011 (273) E.L.T. 3 (S.C
8. Learned Authorised Representative (AR) for Revenue reiterated the findings in the impugned order and submitted that in the absence of documents in support of the refund claims, the Adjudication authority has properly rejected the refund claims made by the Appellant. In support of the above contentions, the learned AR relied upon large number of decisions.
9. Learned Counsel further submitted that the issue is also considered in Appellant's own case by this Tribunal in Appeal No. ST/20147/2021 and vide Final Order No. 20673/2021 dated 16.08.2021, the appeal was allowed. The issue regarding subsequent filing of refund application also was considered and it is categorically held that there is no power or jurisdiction to the Lower authority to re-adjudicate the matter again in view of the various decisions. Thus, it is settled law that the application for refund need not be made at every stage of adjudication. In the present case, the refund application was received on 30.03.2012 and there is no objection in the show cause notice regarding time-bar issue.
10. Heard both sides and perused the records.
11. We have gone through the findings given by the Adjudication authority, the main reason for rejecting the refund claim was that as Page 8 of 13 Service Tax Appeal Nos. ST/20198 to 20208/2021 per the order of the Commissioner (Appeals) vide Order-in- Appeal No. No. 240-250/2017 dated 25.04.2017, the appellant was required to submit the claims along with a set of documents, which were not made available during processing of refund claim filed, initially. The Adjudication authority held that major point of dispute is;
7. As seen from the records of the case, the undisputable points those emerge at this point of time are that the claims related to the period of April 2011 to March 2014 and that the present claim has arisen on account of Commissioner (Appeals) order. As per the order of the Commissioner (Appeals), the assessee was required to submit the claims along with a set of documents, which were not made available during processing of refund claims filed, initially. The claimant had filed 12 refund applications for refund of Cenvat Credit for the period from April 2011 to March 2014 in terms of Rule 5 of the Cenvat Credit Rules, 2004. The refund sanctioning authority had rejected the claims of the assessee on various grounds as discussed above.
8. The major point of disputes in these 12 claims filed as seen in the Orders-in-Original are discussed in detail in para 4 above. All these points of disputes were decided against the assessee by the refund sanctioning authority while disposing of the said refund claims. Thus, the 12 claims filed stand disposed of in all aspects i.e. either by sanction or rejection vide above orders-in-original.
9. Later on, the assessee filed appeals before the Commissioner (Appeals), who remitted the matter to the Lower Authorities for verification of documents and re-consideration and quantification of the refunds, accordingly. Thus, it is also not in Page 9 of 13 Service Tax Appeal Nos. ST/20198 to 20208/2021 dispute now, that the present claim of the assessee has arisen on account of Commissioner (Appeals) above order, only.
10. With above backdrop, let me examine the legal provisions relating to filing of refund claims consequent on orders of the appellate authorities/Courts. The present claim of refund is governed under the provisions of Section 11B of the Central Excise Act, 1944 made applicable to the Service Tax. In terms of the said Section, the claim of refund shall be filed within one year from the relevant date. The relevant date in case of refund arising on account of the decision of the appellate authority, courts etc. has been prescribed under Explanation (ec) of the said Section 11B. The relevant excerpts of the same are reproduced here below.
(B) "relevant date" means,-
[(ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction;]
11. Although, this refund claim was filed in respect of the amount rejected earlier by the Deputy Commissioner and later on decided by the Commissioner (Appeals-II), the assessee should file a fresh claim of refund. To arrive at such a decision, I rely on the decision of the Honourable High Court in the case of M/s. Shakun Overseas Ltd. Vs. CC - 2013 (297) E.L.T. 14 (Mad.), wherein it was held that "it is a matter of relevance that on the dismissal of the assessee claim by the Tribunal dated 01.08.1997, wherein the Tribunal allowed the Revenue's appeal in the first round of litigation, the claim by the assessee could not be said to be alive for all practical purposes. It is only after the order of the Page 10 of 13 Service Tax Appeal Nos. ST/20198 to 20208/2021 Tribunal dated 17.03.1999 dismissing the Revenue's appeal that the right of the assesses to claim refund could surface."
12. We find that the appellant has relied on the CESTAT Final Order No. 20673/2021 dated 16.08.2021 in the Appellant's own case in Appeal No., ST/20147/2021, wherein it is held that application of Cenvat refund need not be made at each stage of adjudication process of an original refund claim. Further, there is no express provisions in Cenvat Credit Rules, 2004 for filing of subsequent refund application. Appellant has cited the decision in M/s SPIC Ltd. Vs. Commissioner of Customs-2007 (209) E.L.T. 91 (Tri.- Chennai) (cited supra), wherein it is held; that the relevant date as envisaged in Section 11B of the Central Excise Act, 1944 applies only to the first application of refund claim made to Assistant/Deputy Commissioner. The appellant submitted that refund in the present case, did not arise on account of any order or judgment, refund was originally claimed based on the statutory provisions read with the notification, which grants refund of credit of input/input services used for export of services. Therefore, the application of refund claim made was not time barred, it was filed well within the period of limitation. The appellant cited the cases of M/s. BASF India Ltd., M/s. BNP Paribas Global Securities Operations Private Limited and M/s. Gil Shared Services Pvt., Ltd. (cited supra).
13. We find that the appellants have filed refund claims along with all the relevant documents, however, the refund claims for rejected by the adjudicating authority against which they went in appeal before Commissioner (Appeals), who had remanded the matter for de-novo adjudication with the following directions, "The issues involved in the appeals are decided, in principle and the matters are remitted to the Page 11 of 13 Service Tax Appeal Nos. ST/20198 to 20208/2021 lower Authorities for verification of documents and re-consideration and quantification of the refunds, accordingly. The appellant shall submit the requisite documents to the Lower Authorities. The Orders-in-Original are modified accordingly, and the Appeals are disposed of in the above terms". As per the directions we find that the Appellate authority has remitted the cases for verification of documents and re-consideration and quantification of the refunds, therefore the rejection of the refund claims by the adjudicating authority in the de-nova adjudication on the grounds of time bar holding that the refund claims have to be filed within one year as prescribed under explanation (ec) to Section 11B of the Central Excise Act, 1944 is not tenable. We find that the rejection of the refund claims on the basis of time bar in the facts and circumstances of the case is not sustainable.
14. The appellant has cited the case laws (supra), where it is held that in these cases the refund application need not be filed refresh. The Adjudicating Authority and Appellate Authority have held that the provisions of section 11B(5) explanation (A)(ec) of the Central Act,1944 are applicable in this subject case, which in our view is not the correct view since de-nova proceedings were taken up based on the directions of the Commissioner( Appeals) with regard to examining certain issues pertaining to the impugned refund claims and it is not a case where the refund has arisen due to the order of the Commissioner(Appeals), hence in the facts of the case application of explanation(A)(ec) to section 11B(5) is not correct application of the provisions of section 11B of the Central Excise Act, 1944. Further, we find that the Commissioner (Appeals) has held that the refund claims are examined and for certain Page 12 of 13 Service Tax Appeal Nos. ST/20198 to 20208/2021 detailed examination the same have been remanded for de-nova Adjudication.
15. We find that the Appellant had complied with the procedure to claim the refund by filing the applications as per the directions of the Adjudicating authority and also submitted the Chartered Accountant certificate as prescribed by the Board. Considering the above the appeals are sustainable.
16. In view of the above discussion, the appeals are allowed with consequential relief, if any, as per law.
(Order pronounced in Open Court on 30.09.2024) (P.A. Augustian) Member (Judicial) (Pullela Nageswara Rao) Member (Technical) pr/iss..
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