Custom, Excise & Service Tax Tribunal
M/S. Grsc Infotech Pvt. Ltd vs Commissioner Of Service Tax, Mumbai-I on 20 February, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. ST/85883/13-MUM [Arising out of Order-in- Appeal No. 118 dtd. 18/10/2013 passed by the Commissioner of Central Excise & Service Tax, (Appeals-IV) Mumbai I] For approval and signature: Honble Mr Ramesh Nair, Member(Judicial) =======================================================
1. Whether Press Reporters may be allowed to see : No
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: seen
of the Order?
4. Whether Order is to be circulated to the Departmental: Yes
authorities?
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M/s. GRSC Infotech Pvt. Ltd.
:
Appellants
VS
Commissioner of Service Tax, Mumbai-I
:
Respondent
Appearance
Shri. Rajiv Luthia, C.A. for the Appellant
Shri. A.B. Kulgod, Asst. Commissioner(A.R.) for the Respondent
CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Date of hearing: 20/2/2015
Date of decision: 20/2/2015
ORDER NO.
Per : Ramesh Nair
This appeal is directed against Order-in- Appeal No. 118 dtd. 18/10/2013 passed by the Commissioner of Central Excise & Service Tax, (Appeals-IV) Mumbai I, wherein Ld. Commissioner (Appeals) upheld the order-in-original No. GS/407/09 dated 13/7/2009 and rejected the appeal of the appellant. The fact of the case is that the appellant filed refund claim of Rs. 1,30,696/- under Rule 5 of the Cenvat Credit rules, 2004 against export of service. The adjudicating authority vide order-in-original dated 13/7/2009 rejected the claim on the ground that appellant have not produced FIRC to show receipt of convertible foreign exchange, FIRC for entire amount of invoices was not produced, in respect some FIRC relevant invoices were not produced. The original authority also contended that services viz., provisional charges for payroll, insurance services, food coupons, annual maintenance service, bank fine charges i.e. business auxiliary service and business support service are not input services, accordingly held that Cenvat Credit availed on such services amounting to Rs. 44,794/- is not eligible to the appellant. It was also held that the Credit availed of Rs. 26,783/- on the input invoices which are not in the name of the appellant also held to be inadmissible. Aggrieved by the said order dated 13/7/2009 the appellant filed appeal before the Commissioner(Appeals) which was rejected. Aggrieved by the said order the appellant is before me.
2. Shri. Rajiv Luthia, Ld. C.A. appearing on behalf of the appellant submits that the appellant have received total amount of service invoices. He submits that in some cases the foreign remittance is not exactly same amount of invoices as against shown in FIRCs, however total amount of invoices raised for export of service have been remitted in their bank account and for entire amount FIRCs are available. It is his submission that it is not necessary that the payment should be received on invoice to invoice basis but if it is on record that the entire amount against all invoices raised for export of services have been received in convertible foreign currency and FIRC for said total amount is produced, the refund should not be rejected. He produced party wise statement of the amount billed and amount received and corresponding FIRC, from which it can be seen that against all the invoices, total amount in convertible foreign currency was received, therefore the refund was wrongly rejected without appreciating the fact available on record. He referred to Board Circular No. 112/06/09-ST dated 12/3/2009 wherein under Sr. No. 3 it was clarified that even if the FIRC are issued on consolidated basis, on production of certified statement alongwith FIRC showing details of export in respect of which the FIRC pertains, refund should be allowed. He submits that since he has submitted the same statement giving reconciliation of invoices and against total amount involved in all the invoices FIRC, were produced, the refund should not have been rejected. As regard the admissibility of certain input services, he submits that order in original traveled beyond scope of show cause notice for the reason that issue of certain services are not input services and some invoices are not in the name of the appellant were not proposal in the show cause notice, therefore order passed on this issue is not sustainable. In this support he placed reliance on the judgment of coordinate bench of this Tribunal in the case of Kijiji (India) Pvt. Ltd Vs. Commissioner of C. Ex. Mumbai[2013(32) S.T.R. 661 (Tri- Mumbai)]. Without prejudice to the above, he submits that all the services for which the dispute was raised in the order are used for providing Business Auxiliary Services and Business Support Services. He submits that since entire out put services are exported it can not be said that some of the services are not used for export services. He further submits that in appellants own case for the same services they have been granted refund for the subsequent period. Therefore stand taken by the original authority and upheld by the Ld. Commissioner regarding inadmissibility of the input services is contradictory of their own stand. As regard the credit on the invoices which are not in the appellants name, he submits that invoices were issued in the name of M/s. Vinmar International (India) Pvt. Ltd. is not different company because appellants present company was earlier known as M/s. Vinmar International (India) Pvt. Ltd. Therefore it can not be said that invoices are in the name of some other person.
3. On the other hand, Shri. A.B. Kulgod, Ld. Asst. Commissioner appearing on behalf of the Revenue reiterates the findings of the impugned order.
4. I have carefully considered the submissions made by both the sides and perused the record.
5. As regard discrepancy related to FIRC, on perusal of the reconciliation statement submitted by the Ld. Counsel, I find that against all the invoices raised for the export services, FIRC are available and from the said reconciliation statement it established that all billed amount have been received in convertible foreign currency by the appellant and this position is squarely covered by the clarification given by the CBEC in Circular No. 112/06/09-ST dated 12/3/2009. I do not agree with the contention of the lower authority that if there is mismatch of FIRC and invoices refund can not be granted. I am of the view that respective FIRCs are for different amount then the mentioned in the invoices but so long entire amount of invoice is received under different FIRC the condition of receipt of payment in convertible foreign currency is satisfied. Therefore, I am of the view that in the present case both lower authorities have gravely erred that despite perusing FIRC total refund was rejected. As regard denial of Cenvat credit in respect of certain services on the ground that said services were not used in out put service, I find that the appellants out put service is exclusively for export and they do not have any other business therefore whatever services they are using, it is used for providing out put service and all the services which was disputed by the lower authority are essential services for providing out put services which were exported. I am therefore of the view that Cenvat Credit of Rs. 44,794/- denied by the lower authority is not sustainable. As regard denial of Cenvat Credit of Rs. 26,783/- on the ground that invoices are not in the name of the appellant, I have perused the certificate of incorporation issued by the Government of India, Ministry of Company Affairs wherein it is certified that the name of the M/s. Vinmar International (India) Pvt has been changed as M/s. GRSC Infotech Pvt. Ltd therefore even earlier name of the company appear on the documents, Cenvat Credit can not be denied, as company remain same before and after change of name. I therefore hold that the appellant is entitled for the Cenvat Credit on the said invoices. Ratio of the judgments cited by the Ld. Counsel in the case of Kijiji (India) Pvt. Ltd (supra) is also applicable in the present case, operative part of the said judgments is reproduced below:
6.?I have carefully considered the rival submissions.
6.1?From the perusal of the input services received by the appellant and the nature of the services received, it is evident that all the services are essential in running the business of rendering the output service Business Auxiliary Service which is exported. If that be so, all the services come within the purview of Rule 2(l) of CENVAT Credit Rules, 2004 which defines the input service. This Tribunal in the case of Convergys India Pvt. Ltd. cited supra, held that when cost of goods and services becomes part of cost of final product or output services, such goods and services should be treated as input or input services for the purposes of CENVAT Credit Rules, 2004. The Honble High Court of Bombay in the case of Ultratech Cement Ltd. - 2010 (260) E.L.T. 369 (Bom.) = 2010 (20) S.T.R. 577 (Bom.) held that any service which has nexus with the business activity of the appellant, whether it is manufacturing or rendering service, has to be treated as input service coming within the purview of Rule 2(l) of the CENVAT Credit Rules, 2004. The ratio of the decisions squarely applies to the facts of the present case. Accordingly, I am of the view that the appellant is rightly entitled for the refund of the Service Tax paid on input services which have been used in the rendering of output services has been exported.
7.?Accordingly, I allow the appeal with consequential relief, if any.
In view of the my above discussions, I am of the view that since lower authorities have not carefully examined the re-conciliation of invoices and FIRC in proper perspective, the matter needs to be remanded. I therefore allow the appeal by way of remand to the original authority with direction that the appellant shall be allowed to submit necessary documents and shall be given personal hearing before the denovo adjudication of the matter. The adjudicating authority shall pass the denovo order within three months from receipt of this order.
(Operative part pronounce in court ) Ramesh Nair Member (Judicial) sk 2