Custom, Excise & Service Tax Tribunal
Apotex Pharmachem India Pvt Limited vs Cce, Bangalore on 22 November, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No ./ 2013 Appeal(s) Involved: ST/101/2008-SM, ST/368/2008-SM [Arising out of Order in Appeal 147-2007 dated 30/11/2007 passed by CC(Appeals), Bangalore [Arising out of Order in Appeal 63-2008 dated 30/04/2008 passed by CC(Appeals), Bangalore APOTEX PHARMACHEM INDIA PVT LIMITED PLOT NO.1-A, BOMMASANDRA INDUSTRIAL AREA 4TH PHASE, BOMMASANDRA INDUSTRIAL ESTATE (PO) BANGALORE Appellant(s) OUTDOOR CLOTHING CURRENTLY A DIVISION OF M/S GOKALDAS IMAGES P.LIMITED NO.123, CHORD ROAD, RAJAJINAGAR, BANGALORE Appellant(s) Versus CCE, BANGALORE Respondent(s)
Appearance:
N. Anand / Ashok Deshpande, Advocates # 152, RACE COURSE ROAD,BANGALORE BANGALORE KARNATAKA 560001 For the Appellants Ms. Sabrina Cano, Superintendent For the Respondent CORAM:
Honble B.S.V. Murthy, Technical Member Date of Hearing: 18/11/2013 Date of Decision: ..
Order Per : B.S.V. Murthy Both the appeals are taken up together and a common order is passed since the issues involved are same even though different orders are under challenge.
2. In the case of M/s. Apotex Pharmachem India Pvt. Ltd., the appellant filed two refund claims. The first one was for an amount of Rs.11,64,684/-for the period 09/2004 to 06/2005. A show-cause notice was issued proposing rejection of the refund claim on 18/11/2005 on the ground that documents submitted by them failed to fulfill the conditions prescribed in CENVAT Credit Rules, 2004(CCR) and the appellants have not been able to show that incidence of duty has not been passed on. The second claim filed by the appellant was for Rs.1,61,645/- for the period from 07/2005 to 08/2005 and show-cause noticed was issued on 29/03/2006 proposing to reject the claim on the ground that Notification No.11/2002-NT dt. 01/03/2002 for refund of CENVAT credit in respect of inputs used does not cover refund of service tax paid on input services. The second ground related to unjust enrichment as in the first case.
3. M/s.Outdoor clothing also filed a refund claim for Rs.3,29,776/- for the period from 09/2004 to June 2005. A show-cause notice was issued proposing to reject the refund claim on the ground that the documents submitted by them failed to fulfill the conditions prescribed in CCR and further the appellants have not been able to show that incidence of duty has not been passed on.
3. Heard both sides. The learned counsel relies upon the following decisions of the Tribunal to support his submission that appellants are eligible for the refund:-
1. Fibres & Fabrics International P. Ltd. Vs. CC [2009(14) STR 809 (Tri. Bang.)].
2. Glittek Granites Ltd. Vs. CC [2010(18) STR 45 (Tri. Bang.)].
3. Bisazza India Pvt. Ltd. Vs. CCE [2008(12) STR 591 (Tri. Ahmd.)].
He also submitted that the lower authorities travelled beyond the show-cause notice when they held that the CENVAT credit is not at all admissible. He also submits that while examining the refund claim, refund sanctioning authority cannot consider whether the credit was admissible or not. Further he also submits that the appellants need not show that incidence of duty has not been passed on since the refund claim relates to CENVAT credit.
4. The authorized representative on behalf of the Revenue relied upon the decision of Honble High Court of Bombay in the case of CST, Mumbai Vs. WNS Global Service (P) Ltd. [2011(22) STR 609 (Bom.)] to submit that the refund claim prior to 14/03/2006 when notification was issued providing for refund of CENVAT credit paid on input service, refund is not admissible in respect of input services.
5. I have considered the submissions made by both sides. I find that both the authorized representatives has not contradicted the claim that in respect of CENVAT credit refund, there is no need to examine unjust enrichment. As regards the eligibility for refund for the period prior to 14/03/2006, I find that all the three decisions of the Tribunal relied upon by the learned counsel for the appellants are applicable to the facts of this case. As regards WNS Global decision (supra) the issue before the Honble High Court was not whether the appellant was eligible for the credit during the period prior to 14/03/2006 when the refund claim also has been filed prior to that date. The issue before the Honble High Court was whether when a claim for refund is made under Notification No.5/2006 dt. 14/03/2006, such a claim can relate to the earlier period or not. Therefore, it is not appropriate to apply this decision. On the other hand, all the decisions cited by the learned counsel directly relate to the issue before me. Therefore, it has to be held that appellant is eligible for the benefit of refund. While coming to this conclusion, I find that this issue was examined by myself while passing an order in the case of Bizazza India Pvt. Ltd. (supra). The relevant paragraph in the decision is in para 4 which is reproduced below:
4.?The main question to be decided is whether refund in cash has to be allowed in terms of Rule 5 and whether manufacturers were eligible for refund prior to 14-3-2006. There is no dispute that the Rule 5 had a provision for grant of refund when credit of service tax paid on input services could not be used by a manufacturer prior to 14-3-2006 and by both the manufacturer and the output service provider after 14-3-2006. Since the amendment made on 14-3-2006 was only addition of or the provider of output service without any other change, it is felt that the decision of the original Adjudicating Authority granting refund was correct. Once the appellant is able to establish that they cannot utilize the credit, it has to be granted in cash. However, it is noticed that the original Adjudicating Authority had issued the order without issue of show cause notice since in any case he was sanctioning the refund claim. Therefore, it is not clear whether the conditions specified in the notification for sanctioning cash refund have been fulfilled or not. Therefore, the matter has to be remanded to the original Adjudicating Authority to take a decision as to whether the appellants are eligible for cash refund in terms of the notification after examining all aspects..
6. As regards defects in documents no specific observations have been made and in the absence of specific defects identification, rejection on such a ground does not arise.
7. The discussion above would show that appellants are eligible for the refund and accordingly both the appeals are allowed with consequential relief, if any, to the appellants.
(Pronounced on .) B.S.V. MURTHY TECHNICAL MEMBER Raja.
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