Custom, Excise & Service Tax Tribunal
Apotex Research Pvt Ltd vs Commissioner Of Central Excise ... on 21 November, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order . 22070 / 2014 Application(s) Involved: E/Stay/21811/2014 in E/21627/2014-SM Appeal(s) Involved: E/21627/2014-SM [Arising out of 334-2013 dated 31/01/2014 passed by Commissioner of Central Excise , BANGALORE-I( Appeal) ] Apotex Research Pvt Ltd Plot No-11, Bommsandra Industrial Area, 4th Phase, Bommasandra Industrial Estate, Jigani Link Road BANGALORE - 560099 KARNATAKA Appellant(s) Versus Commissioner of Central Excise ,Customs and Service Tax Bangalore-i POST BOX NO 5400...CR BUILDINGS, BANGALORE, - 560001 KARNATAKA Respondent(s)
Appearance:
Shri S.SIVAKUMAR ADV #1/1, 7TH MAIN, 2ND STAGE, INDIRANAGAR, BANGALORE-560 038 For the Appellant Shri Mohd. Yusuf, Addl. Commissioner(AR) For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER Date of Hearing: 21/11/2014 Date of Decision: 21/11/2014 Order Per : B.S.V.MURTHY Refund of Rs.20,23,866/- was sanctioned to the appellants for the period from January 2010 to June 2011 but thereafter taking a view that the refund sanctioned was wrong proceedings have been initiated for recovery of the refund already sanctioned to the appellant.
2. There are two grounds for demand of refund already sanctioned. The first ground is that the appellants have taken the credit in respect of Unit-I and Unit-II located in the same compound and appellants should have taken ISD registration and distributed the credit and availment of credit without doing so is not correct. On this issue, the learned counsel relied upon the decision of the Honble High Court of Karnataka in the case of CCE&ST, Bangalore Vs. Biocon Ltd. [2014(9) TMI 716 KARNATAKA HIGH COURT] wherein the Honble High Court observed that if the assessee owns more than one unit and all the units are situated at a place, it would constitute a factory. Admittedly in this case not even two separate registration have been given. As regards the rejection of refund claim on the second ground, the same is on the ground that there is no nexus between the input services and the output services. We find that the services in respect of which credit is proposed to be denied and refund sanctioned to be demanded back are held to be input services in the case of the very same assessee in Final Order No.26617-26629/2013 dt. 26/09/2013. Both the issues are no longer res integra and therefore we consider it appropriate that the matter itself should be finally decided even though the learned AR strongly opposed it and submitted that only stay may be granted and decision an appeal may be postponed. When this Tribunal already has taken a view in respect of the very same services in two orders passed in respect of the very same appellant, one of which has been referred to above and the Honble High Court also has taken a view in respect of the refund rejected on the ground that ISD registration should have been taken, I consider that it would be appropriate to decide the issue finally at this stage itself especially because the learned counsel submitted that this is a recurring issue and if a final order is not passed at this stage, there will be recurring litigation, it may not be proper to allow to continue. Accordingly, the impugned order is set aside and the appeal is allowed with consequential relief, if any, to the appellant. Stay application also gets disposed of.
(Operative portion of the order has been pronounced in open court) B.S.V.MURTHY TECHNICAL MEMBER Raja 3