Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, ... vs Avt Mccormick Ingredients Pvt Ltd on 16 November, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: ST/23418/2014-SM [Arising out of Order-in-Appeal No. 490-2014 dated 27/06/2014 passed by Commisioner Of Central Excise,Customs and Service Tax , COCHIN( Appeal) ] Commissioner of Central Excise, Customs and Service Tax Cochin-CCE C R BUILDING, I S PRESS ROAD, ERNAKULAM, COCHIN, - 682018 KERALA Appellant(s) Versus Avt Mccormick Ingredients Pvt Ltd Vazhakulam Marampilly Po ALUVA - 683107 KERALA Respondent(s)
Appearance:
Shri P Murthy, AR For the Appellant Shri Rinoy Vincent, Adv.
For the Respondent Date of Hearing: 16/11/2017 Date of Decision: 16/11/2017 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 22805 / 2017 Per : S.S GARG The present appeal has been filed by the Revenue against the impugned order dated 27.06.2014 passed by the Commissioner (A) whereby the Commissioner (A) has rejected the appeal filed by the department and upheld the order-in-original.
2. Briefly the facts of the case are that the respondent is holding a Central Excise Registration as a manufacturer exporters of whole clean sterile ST/23418/2014-SM ground/crushed spices/spice mix. They filed a refund claim for Rs. 3,98,906/- being the service tax paid under the category Goods Transport Agency which according to the party is an excess payment. The refund claim was sanctioned by the Dy. Commissioner of Central Excise, Muvattupuzha Division vide OIO No.116/2009 (R) dated 31.08.2009. The Commissioner of Central Excise, Cochin Commissionerate reviewed the Order.
3. Against the order of Dy. Commissioner, the department filed appeal before the Commissioner (A) and the respondent filed cross objections and after considering the submissions of the department and the cross objections filed by the assessee, the Commissioner (A) rejected the appeal of the department.
4. Heard both the parties and perused the records.
5. Learned AR for the Revenue has submitted that the impugned order is not sustainable in law as the same is contrary to the provisions of law and the rules. He further submitted as per Rule 14 of CCR, 2004, when Cenvat credit has been taken or utilized wrongly, the same along with interest has to be recovered but in this case, the assesse did not pay the interest which he is liable to pay.
6. On the other hand, the Learned Counsel for the respondent defended the impugned order and submitted that there is no legal infirmity in sanctioning the refund which the respondent is entitled to get. After considering the submissions of both the parties, I find that there is no infirmity in the impugned order passed by the Commissioner (A). In this regard, it is ST/23418/2014-SM relevant to reproduce the relevant findings of the Commissioner (A) which is contained in Para 10 of the impugned order and is reproduced herein below:
I have carefully gone through the facts of the case, the grounds of appeal and the submissions at the time of Personal Hearing. This is an appeal filed by the Department against the order-in-original No.116/2009S (R) dated 31.08.2009. The contention of the respondent that the appeal is preferred under 35E (4) of the Central Excise Act, 1944 and hence not maintainable in law is not acceptable as the appeal provisions under Finance Act, 1944 corresponds to the Section 35E under Central Excise Act and the issue involved in the present appeal relates to Central Excise also. Coming to the other aspects, I find that M/s. AVT Mc Cromick Ingredients Pvt Ltd., Vazhakulam, Marampilly filed a refund claim for Rs. 3,98,906/- being the excess amount of service paid under the category Goods Transport Agency during the period March 2008 to June 2009. They were required to pay tax on 25% of the freight charged under Notification No.13/2008 ST dated 1.3.2008 but had paid the tax on the full amount. The credit so availed has been utilized for payment of Central Excise duty. After filing the refund claim, they had reversed in cenvat account the credit so taken before sanctioning of the refund, as observed in the impugned order. As such, there is no case of wrong utilization of Cenvat credit under Rule 14 of CCR, 2004 as contended by the department and the respondent is not liable to pay any interest thereon. The other aspects pointed out in the appeal are technical in nature. It has been held by the CESTAT West Zonal Bench, Ahmedabad in the case of Appeal No.E/5 & 14/2010 (Commissioner of C. Ex. Vs. Dishma Pharma & Chemicals Ltd. 2011 (21) STR 246 (Tri.Ahmd) that the refund cannot be denied on technical grounds. I therefore hold that the impugned order granting refund is correct and the appeal is liable to be rejected.
7. Further, I also find that the issue is squarely covered in favour of the assessee by the decision of the Karnataka High Court in the case of Billforge Pvt. Ltd 2012 (279) ELT 209 (Kar).
8. In view of my discussion above, I do not find any infirmity in the impugned order which is upheld by dismissing the appeal of the Revenue.
(Operative portion of the Order was pronounced in Open Court on 16/11/2017) S.S GARG JUDICIAL MEMBER RB 1