Custom, Excise & Service Tax Tribunal
Air Liquide Global E&Ampc Solutions ... vs Commissioner Central Excise And Gst, ... on 11 July, 2022
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CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI.
PRINCIPAL BENCH - COURT NO. II
Service Tax Appeal No. 50841 of 2019-SM
(Arising out of order-in-appeal No. 179/ST/DLH/2018 dated 11.01.2019 passed by
the Commissioner (Appeals-I), Central Tax, Goods & Service Tax and Central
Excise, New Delhi).
M/s Air Liquide Global E&C Solutions Appellant
India Private Limited
A-24/10, Mohan Co-operative Industrial Area
Mathura Road, Badarpur
New Delhi-110044.
VERSUS
Commissioner, Central Excise and Respondent
Goods & Service Tax, Central Revenue Building I. P. Estate, New Delhi, Delhi East.
APPEARANCE:
Sh. Pankaj Goel, C. A. for the appellant Sh. Mahesh Bhardwaj, Authorised Representative for the respondent Hon'ble Mr. Anil Choudhary, Member (Judicial) FINAL ORDER NO. 50623/2022 DATE OF HEARING/DECISION: 11.07.2022 ANIL CHOUDHARY:
Heard the parties.
2. The issue involved in this appeal is whether the Court below have rightly included the amount of 'export turnover' for the calculation refund claim, for which payment has not been received during the relevant period.
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3. The brief facts of the case are that the appellant is a service provider registered with the Department, who are mainly exporting the services and also providing some services in D.T.A. The appellant filed refund claim for the quarter July, 2014 to September, 2014 under Rule 5 of Cenvat Credit Rules read with Notification No. 27/2012-CE(NT), for the refund of the eligible amount of unutilised credit in relation to cenvat credit, due to the nature of export of services. The appellant filed refund claim for an amount of Rs. 1,84,51,600/-. However, the Adjudicating Authority modified the amount of total turnover (denominator) and recalculated the eligible amount of refund as Rs.1,51,25,059/- and accordingly allowed the refund for the same and disallowed the balance amount of refund claim of Rs. 33,26,541/-.
4. Being aggrieved, the appellant preferred appeal before the learned Commissioner (Appeals) who vide the impugned order was pleased to uphold the rejection in part of refund claim, upholding the order-in-original. Being aggrieved, the appellant is before this Tribunal.
5. Learned Counsel appearing for the appellant urges that the amount of refund in terms of Rule 5 of Cenvat Credit Rules has to be allowed as per the formula:
(Export turnover of goods + Export turnover of services) x Net Cenvat credit Refund amount= Total turnover
i) Further, export of services has been defined as -
Payment received during the relevant period for export of services + export services whose provision has been 3 completed for which payment had been received in advance in any period prior to the relevant period.
ii) Total turnover means sum total of the value of -
(a) all excisable goods cleared during the relevant period including exempted goods, dutiable goods and excisable goods exported;
(b) export turnover of services determined in terms of clause (D) of sub-rule (1) above and the value of all other services, during the relevant period; and
(c) all inputs removed as such under sub-rule (5) of Rule 3 against an invoice, during the period for which the claim is filed.
6. The only dispute in this appeal is an error in the calculation of the amount of total turnover by the A.O. According to the appellant, the total turnover has been calculated as follows:-
Particulars Amount (INR)
Export turnover (as defined above) 17,60,67,491/-
Domestic turnover as disclosed in relevant 5,11,21,947/-
service tax return.
Total turnover 22,71,89,438/-
7. It is pointed out that the amount of Rs. 17,60,67,491/- already includes the amount of Rs.5,69,26,766/- in the amount of export turnover, as is evident from the following:-
Particulars Amount (INR) Invoices raised before the relevant period 5,69,26,766/- for which payment has been received during relevant period (Part-A).
Invoices raised during the relevant period 11,91,40,742/- for which payment has been received during the relevant period (Part-B).
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Total Export Turnover 17,60,67,491/-
8. Thus, by again adding the amount of Rs. 5.69 crore to the total turnover is Rs.22.71 crore, the court below has erroneously calculated the figure of Rs. 28.35 crore, which has led to erroneous rejection in part of the amount of eligible refund. It is further pointed out that the amount of refund has to be calculated as per the formula as follows:-
17,60,67,491/- x 2,43,34,808 = Rs. 1,88,75,512/-, 22,71,89,438/-
which is limited to Rs.1,84,51,600/-, as per the Notification No.27/2012-CE(NT), which provides that the amount claimed as refund shall be less of the following minimum amount:-
(i) Amount as per the formula.
(ii) Balance of cenvat credit available on the last day of the
quarter.
(iii) Balance of cenvat credit available on the day of filing of
refund claim.
9. Learned Authorised Representative for the Revenue relies on the impugned order.
10. Having considered the rival contentions, I find that there is no dispute with regard to export turnover, which is Rs.17,60,67,491/-. Further, there is no dispute with regard to the eligible /net cenvat credit, which is Rs. 2,43,54,808/-. As regards the denominator, I hold that the correct figure is Rs. 22,71,89,438/-.
Accordingly, I allow this appeal and direct the Adjudicating Authority to recalculate the amount of refund as discussed and directed 5 hereinabove and allow the balance amount of refund with interest to the appellant within a period of sixty days from the receipt of copy of this order. The appellant is directed to file a calculation sheet as per the order of the Tribunal, before the Adjudicating Authority for perusal.
11. Thus, the appeal is allowed.
(Dictated and pronounced in open Court).
(Anil Choudhary) Member (Judicial) Pant