Custom, Excise & Service Tax Tribunal
M/S Hella India Electronics Pvt. Ltd vs Cce, Pune-Iii on 15 December, 2014
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. IV APPEAL NO. ST/88029/13 (Arising out of Order-in-Appeal No. PIII/RP/79/2013 dated 20.03.2013 passed by the Commissioner of Central Excise (Appeals) Pune-III.) For approval and signature: Honble Shri P.S. Pruthi, Member (Technical) =====================================================
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy : Seen
of the order?
4. Whether order is to be circulated to the Departmental : Yes
authorities?
=====================================================
M/s Hella India Electronics Pvt. Ltd.
: Appellant
Versus
CCE, Pune-III
: Respondent
Appearance
Ms. Aparna Hirandagi, Advocate
: For Appellant
Shri S.V. Nair, Asst. Commr. (A.R.)
: For Respondent
CORAM:
HONBLE SHRI P.S. PRUTHI, MEMBER (TECHNICAL)
Date of Hearing : 15.12.2014 Date of Decision: 15.12.2014
ORDER NO.......................................................
Per: P.S. Pruthi:
The appellant is in appeal against impugned Order-in-Appeal in which Commissioner (Appeals) has rejected the refund claim in accordance with the order of the Deputy Commissioner. The facts are that the appellant exports Information Technology Software Services. They accumulate CENVAT credit on input services which are used for providing the export services. Hence, the claim of refund of credit on input services for the period July, 2011 to September, 2011. Initially there was three issues to be decided namely:-
(a) Whether non-submission of proof of receipt of payment in Convertible Currency for accounting towards export turnover is proved as per the facts of this case.
(b) Whether input service tax credits of Rs. 10,300/-, Rs. 2,925/- and Rs. 8,240/- paid towards leadership development workshop, services of guest house and services availed for facilitating Hella Value Workshop, respectively are admissible as input services credit.
(c) Whether the refund claim was filed in time in respect of two export invoices raised on 01.07.2011.
As regards (b) above, the appellants did not insist on refund of the amount of Service Tax credit and conceded that they are not interested in pursuing the refund under Notification No. 05/2006. As regards (c), the benefit was allowed by the Commissioner (Appeals). On the issue at (a) above the Commissioner (Appeals) rejected the refund claim of Rs. 7,45,882/- for two reasons, first because the FIRCs are not in the name of the appellants unit at Pune and are in the name of their units/offices at other places and secondly, the FIRCs do not bear the invoice numbers under which services were exported.
2. Heard both sides.
3. The learned Counsel stated that the very reasons for rejection were not raised when, an identical facts, an amount of refund of Rs. 14,00,420/- was sanctioned by the Deputy Commissioner. Further she stated that they have submitted a certificate to the Deputy Commissioner confirming that the amount involved in the FIRCs relate to the Pune unit only. She relied on the Tribunal decision in the case of Convergys India Services Pvt. Ltd. Vs. Commissioner of Service Tax, New Delhi 2012 (250 STR 251 (Tri.- Del.) in support of the stand that refund cannot be refused only because the FIRCs did not bear the export invoice numbers. She also showed copies of FIRCs in respect of which refund had been sanctioned.
4. The learned AR appearing for the Revenue reiterates the findings of the Commissioner. He fairly concedes that correlation between the export invoices and the FIRCs is possible. And therefore the matter can be remanded.
5. I have carefully considered the rival contentions. In this case, the appellant filed a refund claim for Rs. 21,46,302/- under Notification No. 5/2006-CE (NT) dated 14.03.2006 issued under Rule 5 of the CENVAT credit Rules, 2004 and read with Section 11B of the Central Excise Act, 1944. Out of total amount, an amount of Rs. 7,45,882/- was rejected for reasons mentioned in para 1 above. The Commissioner (Appeals) rejected the refund appeal on the ground that the FIRCs are not in the name of the appellants unit at Pune but they are in the name of their other unit in Haryana and other places. The second ground was that the FIRCs do not bear the export invoice numbers. It appears to me that to refund has been rejected due to non-correlation between the actual export invoice and remittance received under the FIRCs. I note that there is no requirement in the Notification No. 5/2006 that the FIRCs should bear the export invoices number. However it would be necessary to establish that the remittance received under the FIRCs do relate the export done under the export invoices for sanction of refund. The Commissioner (Appeals) did not notice that part of the refund amount claim was sanctioned by the Deputy Commissioner, even though the FIRCs did not bear the export invoices nos. and some of the FIRCs were addressed to the appellants premises at locations other than Pune. The appellant also submitted a letter to the Deputy Commissioner on 18.07.2013 after the passing of the Order-in-Appeal, confirming the amount in FIRCs which is related to the export invoices in respect of which input Service Tax credit refund is solved. It would be appropriate for the Deputy Commissioner to verify that the remittance received under various FIRCs is in respect of the export invoices. As held in the case of Convergys India Services Pvt. Ltd. (supra), refund cannot be refused only because the FIRCs do not bear the export invoice numbers.
6. Accordingly, the impugned order is set aside by way of remand to the Original adjudicating authority. The appellant will provide all necessary evidence in support of their case. The adjudicating authority will grant personal hearing before decision in this case.
(Dictated and pronounced in open Court) (P.S. Pruthi) Member (Technical) Sp 5