A.T.E. Enterprises Pvt. Ltd vs Commissioner Of Service Tax

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI

COURT No. I

Appeal No. ST/451/10

(Arising out of Order-in-Appeal No. SB (68) 68/STC/2010 dated 11.06.2010 passed by Commissioner of Central Excise, (Appeals), Mumbai I)

For approval and signature:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)

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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 : No 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?

A.T.E. Enterprises Pvt. Ltd. Appellant Vs.

Commissioner of Service Tax, Mumbai Respondent

Appearance:

Shri B.M. Shemlani, C.A. for appellant Shri S.R. Nair, E.O. (AR) for respondent

CORAM:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)

Date of Hearing: 22.09.2015 & 23.09.2015 Date of Decision: 23.09.2015

ORDER NO

Per: M.V. Ravindran

This appeal is directed against Order-in-Appeal No. SB (68) 68/STC/2010 dated 11.06.2010.

2. Heard both sides and perused the records.

3. On perusal of the records, it transpires that the issue is regarding refund claim filed by the appellant. Appellant had filed refund claim before the lower authorities which was rejected by the adjudicating authority after following due process of law. The first appellate authority has also come to the same conclusion.

4. Learned C.A. appearing for appellant would submit that the refund claim is in respect of two issues, (i) service tax paid for an amount of Rs.70,000/- two times, (ii) service tax paid on the commission received for the services exported to foreign principals in respect of import of textile machinery by parties based in India.

4.1 It is his submission that in respect of the service tax paid twice, it is stated that the appellant had paid the service tax on an amount retained by them as tax deducted at source, subsequently on receipt of such amount from the clients they again discharged the service tax liability which is twice over. He would submit that in the last hearing, the Tribunal had directed the lower authorities to verify whether the amount has been paid twice over. It is his submission that the jurisdictional Asst. Commissioners office of Service Tax, Division IV, Mumbai II has vide letter dated 12.03.2014 informed that the amount has been paid at the time of booking of TDS and also again on realization of gross amount. As regards the service tax on the amount of commission received for the services rendered to the foreign principals he would submit that on the very same issue this Bench vide final order No.A/76/15/STB dated 07.01.2015 has held that the services rendered by the appellant to foreign principals is export of services and accordingly the service tax of Rs.73,272/- requires to be refunded to the appellant.

5. Learned D.R would submit that the office of the Dy. Commissioner of Service Tax, Division IV, Mumbai has, on verification, informed that there is a double payment of service tax of approximately Rs.70,000/-. It is his further submission that the commission which has been received by appellant in respect of the textile machinery i.e. imported into India, hence as the recipient of the service is in India the services cannot be termed as export of services.

6. Considered the submissions made by both sides.

7. We find that as regards the tax refund of Rs.70,000/- in respect of double payment of service tax, the Jurisdictional Asst. Commissioner has on scrutiny of the documents submitted by the appellant informed that there is a double payment of tax i.e. at the time of booking of TDS and on realization of the gross amount. Since it is an admitted fact that there is a double payment of service tax of an amount of Rs.70,000/- we find that the appeal filed by the appellant needs to be allowed to that extent and we do so.

7.1 As regards the refund of an amount of Rs.73,272/- of the service tax paid on the commission received from the foreign principal, we find that originally the appellant had filed a claim for refund of Rs.1,12,167/- and after reconciliation restricted their submission before us for an amount of Rs.73,272/-. We find that there is no dispute as to the fact that the said amount of Rs.73,272/- was paid under reverse charge mechanism under the category of Business Auxiliary Services for the commission received by them. Appellant had provided foreign principals various inputs as to the requirement of trade in India during the period March 2005. We find that the appellant had rendered the services relating to sales promotion, marketing, procurement of order and other customer related services. We find strong force in the contentions raised by the learned C.A. that in the appellants own case vide final order No. A/76/15/STB dated 07.10.2015, this Bench has clearly held that the services rendered by this very appellant in procuring orders from Indian Company and passing on to various overseas manufacturers will amount to export of services. The period involved in the appeal in order dated 07.01.2015 is April 2015 onwards. It can be seen from the records that the period involved in this appeal is also similar i.e. 01.04.2004 to March 2005. The ratio of the judgement of the Tribunal in the appellants own case would be applicable for the refund of this amount also. We find that the appellant has also made out a case in his favour for the refund of an amount of Rs.73,272/-. We set aside the impugned order to that extent.

8. The impugned order is set aside and the appeal is allowed with consequential relief as indicated herein above.

(Dictated in Court)

(C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial)

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