Custom, Excise & Service Tax Tribunal
M/S Mccormick Support Services Pvt Ltd vs C.C.E. & S.T., Gurgaon-Ii on 30 January, 2018
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SCO 147-148, SECTOR 17-C, CHANDIGARH 160 017 SINGLE MEMBER BENCH COURT NO. II APPEAL NO. ST/60760/2017 [Arising out of Order-in-Appeal No. 173/ST/APPEAL-II/MK/GGN/2016-17 dated 24.10.2016 passed by the Commissioner of Central Excise (Appeals-II), Gurgaon] Date of hearing/decision: 30.01.2018 For approval and signature: Honble Mr. Devender Singh, Member (Technical) M/s McCormick Support Services Pvt Ltd : Appellant(s) VS C.C.E. & S.T., Gurgaon-II : Respondent(s)
Appearance:
Present for the Appellant(s): Sh. A. Krishna Thej, Advocate Present for the Respondent(s): Sh. Satya Pal, A.R. CORAM:
Honble Mr. Devender Singh, Member (Technical) FINAL ORDER NO. 60063/2018 Per : Devender Singh The brief facts of the case are that the appellant had filed a refund claim of Rs. 25,72,280/- under Notification No. 27/2012 dt. 18.06.2012. The refund claim was accompanied by the relevant documents including F.I.R.C. certificate. The refund claim was rejected on the ground that the export turnover was not mention in the ST-3 returns for the relevant period. The appellant being aggrieved from the order of the Adjudicating Authority went in appeal before Commissioner (Appeals), who rejected their appeal and upheld the order of the Adjudicating Authority. Aggrieved from the same, the appellant have filed this appeal.
2. At the outset, the Ld. Advocate for the appellant submits that they are not contesting the matter pertaining to refund of Cenvat credit on outdoor catering as the amount is small. Ld. Advocate further submits that the condition of export turnover to be declared in ST-3 returns is not mentioned in the notification. There is a separate condition imposed in the notification in accordance with the formula given in Rule 5(1)(D) of the Cenvat Credit Rules. The contention is that the refund has been rejected even though they had submitted the certificate of C.A. providing details of export turnover of services. He also placed a copy of C.A. certificate on record. He also referred to a recent order of the Commissioner (Appeals) dt. 28.11.2017 in their own appeal, in which the Commissioner (Appeals) had allowed their appeal holding that non-disclosure of export turnover in ST-3 returns is a procedural lapse and does not alter the fact of export turnover of the services. He also relied on the decision in the case of M/s Affinity Express India Pvt Ltd. 2015-TIOL-2441-CESTAT-MUM.
3. Ld. AR submits that non-declaration of export turnover in ST-3 returns is not a procedural lapse and is a mandatory requirement. He reiterated the other findings in the order of the Commissioner (Appeals).
4. Heard both the sides and perused the record.
5. As the appellants are not contesting refund on account of outdoor catering, the order of Commissioner (Appeals) to that extent is upheld. For the remaining refund, I find that the Notification No. 27/2012 dt. 18.06.2012 prescribes the following condition at Sr. No. 2(e):-
(e) in respect of the services, for the purpose of computation of total turnover, the value of export services shall be determined in accordance with clause (D) of sub-rule (1) of Rule 5 of the said rules. In the clause (D) of sub-rule (1) of Rule 5, the following formula has been given to define the export services:-
5. (1) (D) Export turnover of services means the value of the export service calculated in the following manner, namely:-
Export turnover of services = payments received during the relevant period for export services + export services whose provision has been completed for which payment had been received in advance in any period prior to the relevant period advances received for export services for which the provision of service has not been completed during the relevant period I find that neither in the notification, nor in the Cenvat Credit Rules, there is a condition that the refund sanctioning authority has to make a reference to ST-3 returns for ascertaining the export turnover of services. I also find that the appellant had given the C.A. certificate and the certification about their FIRC for realized foreign currency. The facts of the export of services and receipt of foreign currency exchange had not been disputed. By bringing the condition of non-declaration of export turnover in ST-3 returns, the adjudicating authority as well as the Ld. Commissioner (Appeals) has attempted to bring an extraneous condition, which is not prescribed in the notification. Non-declaration of export turnover, when there is no allegation of evasion or any other wrongdoing appears to be a procedural lapse and the department has been provided with statutory powers to take action on the same. I also find that in subsequent order dt. 28.11.2017, in appellants own appeal, the Ld. Commissioner (Appeals) has allowed the appeal on the very same ground.
In these circumstances, it will be in interest of justice that the matter is remanded back to the adjudicating authority to re-examine the contested refund claim keeping in view the findings and observations above. The appellant would be given fair opportunity to defend their case.
6. The appeal is disposed off by way of remand in the above terms.
(Dictated and pronounced in the open court) Devender Singh Member (Technical) RAS 4 ST/60760/2017- CHD