Custom, Excise & Service Tax Tribunal
Rr Donnelley India Outsource Pvt. Ltd vs Commissioner Of Central Excise, ... on 28 November, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: ST/20459/2015-SM, ST/20460/2015-SM [Arising out of Order-in-Appeal Nos. 623 & 624/2014 dated 25/11/2014 passed by the Commissioner of Central Excise, Customs and Service Tax, Cochin (Appeals) ] RR Donnelley India Outsource Pvt. Ltd. B2 C2 Pamba, Technopark, Kariavattom Thiruvananthapuram 695 581 Kerala Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax Trivandrum T.C. No.26/334 (1&2), I.C.E Bhavan, Press Club Road, Trivandrum 695 001 Kerala Respondent(s)
Appearance:
Shri Sundara Raman R., CA For the Appellant Shri Pakshi Rajan, AR For the Respondent Date of Hearing: 28/11/2016 Date of Decision: 28/11/2016 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order Nos. 21421-21422 / 2016 Per: S.S GARG The appellant has filed these two appeals against the common impugned order passed by the Commissioner (Appeals) vide his order dated 25.11.2014 vide which the Commissioner (Appeals) has rejected the appeals of the appellant. Since the issue involved in both the appeals is identical and against the common impugned order, I proceed to dispose of both the appeals by this common order.
2. Briefly the facts of the case are that the appellant is registered as the output service provider for Business Auxiliary Service and Business Support Services and most of his services are exported. Appellant filed a refund claim under Rule 5 of the Cenvat Credit Rules read with Notification 5/2006 NT dated 14.04.2006 for Rs. 19,50,473/- (Rupees Nineteen Lakhs Fifty Thousand Four Hundred and Seventy Three only) for the period November and December 2007 relating to input services availed and used in providing the output services exported. Thereafter the Assistant Commissioner issued a show-cause notice dated 22.01.2009 proposing to reject the refund claim. Thereafter the appellant refuted the allegation in the show-cause notice by filing the reply and the Assistant Commissioner vide his order dated 29.04.2009 rejected the refund on the ground that the name of the company has changed from Astron Document Management Pvt. Ltd. to RRD Donnelley India Outsource Pvt. Ltd. and that the input service invoices were in the name of Astron Document Management Pvt. Ltd., the amount of export turnover disclosed in the Service Tax Return and Form A claiming refund of service tax are different and Management, Maintenance or Repair Service provided by the appellant does not qualify as an export of service. Aggrieved by the said order, the appellant filed the appeals before the Commissioner and the Commissioner vide his order dated 25.11.2014 rejected the appeals on the ground that the name of the company is different in input service invoices, the appellant is not eligible for refund for rendering Management, Maintenance or Repair Service provided through computer network or internet, value of taxable turnover differs in ST-3 and in Form A and input invoices do not meet the requirements laid down in Rule 4A of Service Tax Rules, 1994 and lastly ineligible cenvat credit availed on Car Parking Bills and Photography Services. Aggrieved by the said order, appellants have filed these two appeals.
3. I have heard the learned counsel for the parties and perused the records.
4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as both the authorities have failed to consider the submissions made by the appellant and the evidences produced by them. He further submitted that the impugned order has wrongly denied the credit on the ground that the name of the appellant is different in the input service invoices. He also submitted that the appellant duly obtained centralized Registration from the Service Tax Department in Chennai w.e.f. 1st April 2008. As the Service Tax Returns are required to be filed once in six months, the appellant chose to amend the registration w.e.f. 1st April 2008. However, the appellant has duly informed the Department of the change in name of the company on 13th August 2008 which fact has been admitted in Order-in-Original. He also submitted that the constitution of the appellant remained the same and only its name has been changed and not the identity of the appellant and for all legal requirements, the appellant remains the same legal entity. He also submitted that though the invoice is in the name of Astron Document Management Pvt. Ltd. but the payment for such invoices has been made by the appellant and there is no loss to the Department. In support of this submission he submitted that the substantive right of the appellant should not be denied on mere procedural grounds as the appellant has complied with the substantial provisions of law. In support of this submission, he relied upon the following decisions:
a) Ginni Filaments Ltd. 2014 (311) E.L.T. 887 (G.O.I)
b) Commissioner of Central Excise, Lucknow Vs. Aditi Foams Private Limited 2003 (159) ELT 305
c) CCE, Calcutta II Vs. Nicco Corporation Limited 2000 (126) ELT 1022
d) Prudential Pharma Limited Vs. CCE, Hyderabad-I 2003 (161) ELT 641
e) I. Seva Systems Private Limited 2007 (7) STR 242 (Commr. Appeals)
f) Raaj Khosla & Co. 2008 (10) S.T.R. 600 (Tri.-Del.) 4.1. With regard to the second issue, the learned counsel submitted that the appellant has paid service tax during the month of November & December 2007 under the taxable service category of Management, Maintenance or Repair Services in its capacity as a recipient of services under reverse charge mechanism and therefore the question of such service provided by the appellant being exported or not does not arise and the lower authorities have confirmed the demand on the basis of assumptions which is wrong. In support of this, he submitted that the Service Tax Return clearly disclosed that these services are only received and not provided by the appellant. Further he submitted that the refund has been wrongly denied on the basis that value of taxable turnover differ in ST-3 and Form A. He further submitted that the appellant has disclosed these accruals in ST-3 return only for the purpose of having consistency in the books of accounts with ST-3 Return, accordingly request the same is not taken as the basis for computing the total turnover. The appellant has also submitted all the documents along with a detailed reconciliation in support of their contention at the time of filing the appeals with the Commissioner (Appeals). However, without considering these the learned Commissioner (Appeals) has passed the order stating that no proper evidences were produced by the appellant and rejected the appeals. Learned counsel further submitted that the learned Commissioner has wrongly denied the credit on the ground that registration number of service provider is not mentioned in the invoices. On the other hand the learned counsel submitted that there are no specific provisions under the Cenvat Credit Rules which provided that the appellant would be entitled to avail credit only upon remittance of tax by service provider. In this regard reliance was placed on the Boards Circular No. 766/82/2003-CX dated 15.12.2003. In support of this submission, he relied upon the following decisions:
a) Imagination Technologies India Pvt. Ltd. Vs. CCE, Pune III 2011 (23) S.T.R. 661 (Tri.-Mumbai)
b) Varanasi Domestic Appliances Pvt. Ltd. Vs. CCE, Allahabad 2007 (213) E.L.T. 286 (Tri.-Del.)
c) CCE, Pondicherry Vs. SPIC Pharmaceuticals Division 2006 (199) E.L.T. 686 (Tri.-Chennai)
d) Bhuwalka Steel Industries Ltd. Vs. CCE, Thane-I 2007 (212) E.L.T. 63 (Tri.-Mumbai) 4.2. The next ground on which the credit has been denied is Parking Bills and Photography Services holding the same as not input services. In this regard, the learned counsel submitted that these two services are input services because they are relating to the business operations. He also submitted that Photography Services were used for the purpose of issue of ID cards for the employee which is mandate for an employee and that the car park facility is essential part of the premises from where the taxable services are rendered and they are to be treated as part of rent for the building which is in turn an eligible input service. In support of this submission, he relied upon the following authorities:
a) CCE, Nagpur Vs. Ultratech Cement Ltd. 2010 (260) E.L.T. 369
b) Coca Cola India Pvt. Ltd. 2009 (242) E.L.T. 168 (Bom.)
c) ABB Ltd. and others Vs. CCE, Bangalore and others 2009 (15) STR 23
d) Victor Gaskets India Ltd. 2008 (10) S.T.R. 369 (Tri.-Mumbai)
e) Shriram Consolidated Limited 2006 (4) STR 610
f) Affinity Express India Pvt. Ltd. Vs. CCE, Pune-I 2011 (22) S.T.R. 177 (Tri.-Mumbai)
g) Heartland Bangalore Transcription Services (P) Ltd. Vs. C.S.T. Bangalore 2011 (21) S.T.R. 430 (Tri.-Bang.)
h) Tata Steel Ltd. Vs. CCE, Mumbai-V 2011 (21) S.T.R. 444 (Tri.-Mumbai)
i) Toyota Kirloskar Motor Pvt. Ltd. Vs. CCE, LTU, Bangalore 2011 (24) S.T.R. 645 (Kar.)
5. On the other hand the learned AR reiterated the findings of the impugned order.
6. After considering the submissions of both the parties and the perusal of the records and the judgments cited supra, I am of the opinion that the impugned order is not sustainable in law as the appellant has given sufficient documentary evidence and the decisions of the Tribunal in support of his claim. But the learned Commissioner has failed to consider those submissions and documents and also the judgments cited by the appellant in support of his claim. As far as first ground on which cenvat credit was denied is totally wrong because the change of name does not make the appellant ineligible to claim cenvat credit and more so it has been informed to the Department well in time. Secondly, with regard to Management, Maintenance or Repair Service, the lower authority has wrongly considered it as an export of service whereas it is import of service as evidenced by the Service Tax Returns. Similarly, I am of the opinion that the denial of credit on the ground that registration number of service provider is not mentioned in the invoices is not sustainable in law when the appellant has duly paid the tax to the vendor. Similarly, I also hold that appellant is entitled to cenvat credit on input services in the nature of Car Parking and Photography Services in view of the reasons stated supra. Therefore, considering all the submissions of both the parties, I set aside the impugned order and allow both the appeals by way of remand to the original authority to examine all the documents produced by the appellant in support of his case and then pass a reasoned order keeping in view the various case-laws cited supra. Consequently, both the appeals are allowed by way of remand.
(Operative portion of the Order was pronounced in Open Court on 28/11/2016) (S.S GARG) JUDICIAL MEMBER iss