Custom, Excise & Service Tax Tribunal
Econo Services India P Ltd vs Commissioner Of Gst&Amp;Cce(Chennai ... on 16 September, 2019
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL, CHENNAI
REGIONAL BENCH - COURT NO. - III
Service Tax Appeal No. 40158 of 2018
(Arising out of Order-in-Appeal No.225/2017 (CTA-I) dated 11.10.2017 passed by
the Commissioner of Central Excise (Appeals - I), Chennai)
M/s. Econo Services India P. Ltd. Appellant
No. 3, 3rd Floor, Srijees No. 177/103
Lloyds Road, Royapettah
Chennai - 600 014.
Vs.
Commissioner of GST & Central Excise Respondent
No. 26/1, Mahatma Gandhi Road Chennai - 600 034 APPEARANCE:
Shri G.Derrick Sam, Advocate for the Appellant Shri S. Govindarajan, AC (AR) for the Respondent CORAM Hon'ble Ms. Sulekha Beevi C.S., Member (Judicial) Final Order No. 41056 / 2019 Date of Hearing: 16.09.2019 Date of Decision: 16.09.2019 Brief facts are that the appellants are registered themselves with the Service Tax Department under the category of consulting engineer service. They entered into an agreement for providing design, consultancy and commissioning of sewage treatment plant in Namibia for USD 34,000. For providing the services they had to get license from CLRI and the appellant paid service tax of Rs.71,070/- to CLR on 2.12.2014. They then filed refund claim on 25.11.2016 for the refund of amount paid as service tax to CLRI. The Show Cause Notice 2 was issued to the appellant proposing to reject the refund claim on the ground of being time-barred. After due process of law the original authority rejected the refund claim which was upheld by the Commissioner (Appeals). Hence this appeal.
2. On behalf of the appellant, ld. counsel Shri G. Derrick Sam appeared and argued the matter. He explained the chain of events and submitted that the appellant had provided design, consultancy and commissioning of sewage treatment plant in Namibia. The consideration for such services was USD 34000. The appellant had received the consideration only by part payments. On 10.11.2014, the appellant received USD 23,983 from Namibia. Later, USD 5000 was received on 7.7.2015. The appellant was yet to receive the balance consideration of USD 5000. The department rejected the refund claim stating that one year has expired from the date of payment of service tax as well as date of receipt of foreign exchange. He submitted that the service tax was paid on7.12.2014 to CLRI. The payments in foreign exchange were received on10.11.2014 and 7.7.2015. The last payment of USD 5000 was received only later i.e. 21.5.2018. Thus, since the appellant had not received the entire payment for the consideration at the time of filing of refund, it cannot be said that there is a delay in filing the refund claim. The entire payment has been received on 21.5.2018. It was further submitted by the appellant that payments were received in part because the project / services was not completed by the appellant within the date. He referred to the letter dated 15.7.2018 issued by Namibia wherein it is stated that the project has been completed only on 15.3.2018. He submitted that the amount was not fully received by the appellant 3 on 7.7.2015 (the date of second instalment) and therefore the rejection of refund claim alleging time-bar cannot sustain.
3. The second argument of the counsel is that Notification 27/2012 did not have any condition of limitation. Only vide the amended notification 14/2016-CE(NT) dated 1.3.2016 the condition for limitation was included whereby it was provided that the claim has to be made within one year before the expiry of receipt of payment in convertible foreign exchange where provision of service has been completed. The services having been exported prior to 1.3.2016, the said amendment would not apply.
4. The ld. AR Shri S. Govindarajan reiterated the findings in the impugned order. He specially stressed upon the findings made in para 6 of the Order in Appeal. He submitted that the refund claim has been filed by the appellant only on 25.11.2016. Hence the amended notification dated 1.3.2016 would be applicable to the refund claim by the appellant. Further, the appellant has raised invoices to the service recipient abroad and received payment on these invoices on 10.11.2014 and 7.7.2015. Therefore, the receipt of convertible foreign exchange having been completed with regard to the invoices raised, the time limit of one year would apply to the refund claim made by the appellant. The authorities below have rightly considered all these facts and rejected the refund claim.
5. Heard both sides.
6. the ld. counsel has strenuously argued that the refund claim cannot be rejected on the ground of time-bar as the notification introducing the time limit was issued only on 1.3.2016 and that the provision of services where completed prior to this date. While 4 making this prayer, he also put forward a contra argument that only on 15.3.2018 project completion letter was issued by recipient of service and the balance payment was received only on 21.5.2018. Even when we go by receipt of part payment by the appellant which are 10.11.2014 and 7.7.2015, the refund claim made on 25.11.206 is beyond the period of one year as discussed by the authorities below. If the payment received by the appellant on 21.5.2018 is to be considered, as argued by the counsel, the refund claim would be premature. On all the grounds, I do not think that the appellant has a fit case for grant of refund. The rejection of refund by the authorities below is thus held to be legal and proper. The impugned order does not call for any interference and the appeal filed by the appellant is dismissed.
(Dictated and pronounced in open court) (SULEKHA BEEVI C.S.) Member (Judicial) Rex