Custom, Excise & Service Tax Tribunal
Cgst & Central Excise, Chennai South ... vs Arising Out Of Order-In-Appeal No.103 ... on 15 March, 2018
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH CHENNAI Application/ Appeal Nos. Appellant Respondent
ST/Misc[CT]/41443/2017 to ST/MISC[CT]/41462/2017 & ST/Misc/41299[CT]/2017 ST/41049/2016 to ST/41069/2016 Ford Motor Private Ltd.
CGST & Central Excise, Chennai South Commissionerate Arising out of Order-in-Appeal No.103 to 123/2016 (STA-I) dt. 22.2.2016 passed by the Commissioner of Service Tax (Appeals-I) Chennai.
Appearance :
Shri Rabeen Jayaram, Advocate For the Appellant Shri K. Veerabhadra Reddy, JC (AR) For the Respondent CORAM :
Honble Ms. Sulekha Beevi C.S. Member (Judicial) Honble Shri V. Padmanabhan, Member (Technical) Date of hearing / decision : 15.03.2018 FINAL ORDER No. 40837-40857 / 2018 Per Bench The MAs filed by Revenue for change of cause title are allowed.
2. The present set of appeals have been filed against the impugned Order-in-Appeal Nos.103 to 123/2016 (STA-I) dt. 22.2.2016 passed by the Commissioner of Service Tax (Appeals-I) Chennai. In the said OIA, the Commissioner (Appeals) has disposed of a batch of 21 appeals filed before him against various orders-in-original covering the period September 2009 to March 2012.
3. The dispute in all these cases is refund of unutilized cenvat credit under Rule 5 of the Cenvat Credit Rules, 2004. The appellant has exported services and availed cenvat credit on various input services for the same. Since the services were exported, the unutilized cenvat credit was sought to be refunded. Vide the impugned order, the rejection of such refund claims by the original authority were upheld. Aggrieved by the decision of the Commissioner (Appeals), the present set of appeals have been filed by the appellant.
4.1 At the outset, Ld. Counsel Shri Rabeen Jayaram representing the appellant submits that the present impugned order relating to Appeal Nos.ST/41049-41069/2016 (except Appeal No.ST/41065/2016) does not survive as the Commissioner (Appeals) had already disposed off the very same batch of appeals vide his earlier OIA No. 89 to 110/2014 (M-ST) dt. 14.03.2014 (covering the period prior to January 2012 covered in the present impugned order). This OIA was challenged both by the assessee as well as by the department before Tribunal which were decided vide Final Order No. 40658-40671 / 2018 dt. 14.03.2018. He submitted that the order passed by the Commissioner (Appeals) pertaining to the period prior to January 2012 covered in the present impugned order is infructuous and the order passed should be considered as null and void.
4.2 With reference to Appeal No.ST/41065/2016, covering the period January 2012 to March 2012, the counsel submitted that the appellant will be entitled to the cenvat credit already availed under Rule 2 (l) of the CCR 204. Accordingly, the refund under Rule 5 is to be paid to the appellant. However, he fairly concedes that the FIRCs for an amount of Rs.49,54,919/- was not produced before the lower authorities at the time of consideration of the refund claims. He further submits that such FIRCs have since been received and appellant is in a position to produce the same for verification, if an opportunity is given.
4.3 Ld.counsel also submitted that authorities below have wrongly calculated the refund claim by deducting the credit utilized from the total credit availed by the appellant thereby wrongly arriving at the net credit as per the formula. The Commissioner (Appeals) in the earlier decision vide OIA No. 89 to 110/2014 (M-ST) dt. 14.03.2014 held the issue in favour of the appellant. He therefore prayed that the same view may be taken in these appeals also.
5. The Ld. A.R Shri K. Veerabhadra Reddy appearing for the Revenue fairly concedes that Appeal Nos.ST/41049-41069/2016 (other than ST/41065/2016) are pertaining to portions of Commissioner (Appeals) order which are already disposed of and hence are to be considered as null and void. However, with reference to the period Jan 2012 to March 2012, he reiterated the findings of the authorities below and submitted that the appellant will not be eligible for such cenvat credit in view of the amendments carried out in the Cenvat Credit Rules with effect from 1.4.2011.
6. Heard both sides and perused the records.
7. The Commissioner (Appeals) in the impugned order has disposed of 21 appeals filed before him. After perusal of records, we find that, as pointed out by the appellant, the issues pertaining to the period prior to January 2012 stands already disposed of by the Commissioner (Appeals) in his earlier order. Since the finding in the present order appears to have been passed without noticing such fact, we have no hesitation in holding that this part of the order of the Commissioner (Appeals) order is null and void since the same had already been decided by his earlier order. To this extent, we dispose of Appeals ST/41049-41069/2016 (other than ST/41065/2016) as infructuous.
8. Next, we turn to the disputes for the period January 2012 to March 2012. The appellant has availed cenvat credit in respect of various services namely Air Travel Agent, Business Auxiliary Service, Courier Agency, Custom House Agent, Event Management Service, Management, Maintenance and Repair service, Manpower Recruitment Service and Transportation of Goods by road. It is claimed that all such services were utilized by the appellant during the course of provision of service which stands exported. After perusing the nature of services, we are of the view that all services other than Event Management Service are covered by the definition of input service under Rule 2(l) of the CCR 2004 even after amendment carried out on 1.4.2011. Consequently, the appellant will be eligible for such services and hence eligible for refund of the same under Rule 5 of the CCR. However, in respect of Event Management Services, we fail to see the correlation of the same with the activities of the appellant and cannot be considered as an input service. Hence we uphold disallowance of the cenvat credit on such service Refund of same under Rule 5 of the CCR 2005 is also disallowed.
9. It has been submitted by the appellant that FIRCs for an amount of Rs.49 lakhs, which could not be produced before the lower authorities during the earlier proceedings, are now available with the appellant and can be produced for verification. In view of the above submissions, we are of the view that a further opportunity is required to be given to the appellant for submission of such FIRCs for verification before the original authority who will consider the same before passing order in the de novo proceeding for the period Jan-March 2012.
10. From a perusal of the earlier OIA No.89 to 110/2014 (M-ST) dt. 14.03.2014, it is seen that the issue whether the credit utilized can be deducted from the total credit availed by the appellant for applying the formula has been held in favour of the assessee. Following the same, we set aside the method of arriving at the refund claim by the authorities below in the present order.
11. In the result, the impugned orders in respect of Appeal Nos. ST/41049-41064 and 41066 to 41069/2016 are set aside as null and void and appeals are disposed of accordingly. Appeal No.ST/41065/2016 is allowed partly in the above terms with consequential relief, if any, on above terms.
(dictated and pronounced in court)
(V. Padmanabhan) (Sulekha Beevi C.S)
Member (Technical) Member (Judicial)
gs
2
Appeal Nos.ST/41049-41069/2016
with ST/Misc/41443-41462/2017,
ST/Misc/41299/2017