Custom, Excise & Service Tax Tribunal
M/S. Makers Mart vs C.C.E. & S.T. Jaipur-Ii on 2 June, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Service Tax Appeal No. ST/2555/2012-[DB]
[Arising out of Order-In-Appeal No. 69-79/AKJ/ST/JPR-II/12-dated: 14.05.2012 passed by Commr. (Appeals-II) Jaipur]
For approval and signature:
Hon'ble Mr. S.K. Mohanty, Member (Judicial)
Honble Mr. R. K. Singh, 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?
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
M/s. Makers Mart ...Appellant
Vs.
C.C.E. & S.T. Jaipur-II Respondent
Appearance:
Mr. O. P. Agarwal (Consultant) for the Appellant Mrs. Suchitra Shrma, (DR) appeared for the Respondent CORAM:
Hon'ble Mr. S.K. Mohanty, Member (Judicial) Honble Mr. R. K. Singh, Member (Technical) Date of Hearing/ Decision.02.06.2016 Final Order No. 52061 /2016 Per R. K. Singh:
Appeal is filed against order-in-appeal dated 14.05.2012 in terms of which service tax refund of Rs. 40,127/- for the period 01.01.2010 to 31.03.2010 was rejected on the following grounds:
(i) As per OIO & OIA, list of specified services required for authorized operation in unit duly approved by the approval committee was not submitted.
(ii) Refund of Rs. 24,660/- rejected as claim filed late.
(iii) Reduced payment against billed amount.
2. The Ld. Consultant for the appellant has pleaded that as far as grounds No. (i) and (ii) are concerned in the appellants own case vide CESTAT order No. ST-A/53881-53883/2015 dated 26.11.2015, the issue has been decided in favour of the appellant. As regards, the reduced payment, the Ld. Consultant stated that payment was reduced only to the extent of TDS which was deducted and deposited in the Government account on behalf of the service provider and therefore in effect the entire amount was paid to the services recipient .
3. The Ld. DR on the other hand stated that no evidence of TDS having been deposited by the appellant has been submitted and also there was no application seeking extension of time beyond 6 Months for filing the refund claim and therefore the Commissioner (Appeals) is justified in holding the refund to be barred by limitation as same was filed beyond 6 months and also disallowing the refund to the extent of the so called TDS deducted.
4. We have considered the contentions of both sides.
5. As far as ground at serial no. (i) above is concerned, we find that the issue is squarely covered vide judgment of CESTAT cited in Para 2 above. Para 4 said of the judgment is reproduced below:
4. We have considered the contentions of the appellant. As regards the ground of non-submission of the approved list of authorised operations which is a condition in notification No. 9/2009 ST , we find that the issue has been discussed and analysed and settled in favour of the asessees in the case of Intas Pharma (supra) wherein it was held that under :
11.On true and fair construction of Notifications 9/2009 and 15/2009 issued under Section 93(1) of the Act, considered in the light of the overarching provisions of Sections 7 and 26(e) of the 2005 Act, the conclusion appears compelling that neither Notification 9/2009 nor 15/2009 disentitle immunity to Service Tax enjoined by the provisions of the 2005 Act. It therefore appears that Notification Nos. 9/2009 and 15/2009 merely contour the process by which the benefit of exemption/immunity to tax is operationalised. Notification Nos. 9/2009 and 15/2009 have provided a facilitative regime whereby a developer or units of SEZ, as recipients of taxable service are enabled the facility of claiming refund of Service Tax, remitted by taxable service providers in relation to the taxable services provided to a unit in a SEZ. On this harmonious construction, the immunity to Service Tax provided under Section 7 or 26 of the 2005 Act cannot be so interpreted as to be eclipsed the procedural prescriptions of Notification No. 9/2009 or 15/2009. These Notifications are calibrated to enable recipients of taxable services (exempt from liability to tax under the provisions of the 2005 Act), to claim refund of the Service Tax, wherever assessed and collected by Revenue or remitted otherwise by the taxable service provider, inadvertently. Considered in the light of this analysis, the substituted provisions, of clause/sub-paragraph cof Notification No. 15/2009 cannot be inferred to have imposed any disability on the recipient of services consumed wholly within the SEZ, from seeking refund of Service Tax remitted on such transactions, by the providers of such services.
6. Regarding the delay, we find that in the aforesaid order of CESTAT, the delay was only 2 days and that too occurred on account of the intervening Saturday and Sunday and therefore the CESTAT condoned the said delay. Thus, the reasoning of that order does not come to the rescue of the appellant in the present case where the delay is in the range of 5 days to 2.5 months. We, however, do take notice of the fact that as per the para 2(f) of the Notification No. 9/2009-ST, the claim of refund is to be filed within 6 months or such extended period as the Assistant Commissioner of Central Excise shall permit. The Commissioner (Appeals) observed in the impugned order that there was no application seeking extension of time for filing refund and therefore the claim is not wrongly held to be hit by time bar. Having said so, we would like to observe that the amount involved in this case is paltry and the Ld. Consultant has stated that the appellant also has a factory where they claim refund of service tax under Notification No. 41/2007-ST and were following similar timeline in this case also. In these circumstances we are of the view that given the fact that there is a provision for condoning the delay in the notification No. 9/2009-ST and the delay was not unreasonable or deliberate, the delay deserved to be condoned and we condone the same.
7. As regards the rejection of refund proportionately on account of deduction from the invoice in the name of TDS, we would like to state that TDS is deducted and deposited on behalf of the service provider and therefore the amount of TDS deducted has to be treated as the payment made for the service and deposited with the Govt. on behalf of the service provider. It is seen that the lower authority observed that the evidence of having deposited the TDS in the Government account was not submitted and therefore he did not allow the refund of service tax component pertaining to the TDS. While we do not find anything seriously unreasonable in the reasoning of the lower authority having regard to the fact that the amount involved on this account is paltry, the Ld. Consultant has asserted that the TDS has actually been deposited in the Government account, the service provider has not disputed that fact and further, the service tax sought to refunded has actually been paid and the provisions of SEZ Act are overacting (as stated earlier), we are of the view that reduction of refund amount pertaining to the amount deducted on account of TDS is not sustainable in the present case.
8. In the light of the foregoing analysis we set aside the impugned order and allow the appeal.
(Dictated and pronounced in the open court)
(R. K. Singh) (S. K. Mohanty)
Member(Technical) Member (Judicial)
Neha
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ST/2555/2012-[DB]