Affiliated Computer Services Of India ... vs Commissioner Of Central Excise, ...

[Arising out of Order-in-Appeal No. 07 & 08-2010 dated 10/02/2010 passed by CCE,C&ST(Appeals), Cochin]

For approval and signature:

HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

1 Whether Press Reporters may be allowed to see 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 CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

AFFILIATED COMPUTER SERVICES OF INDIA PVT LTD VISMAYA BUILDING, INFORPARK, KAKKANAD, COCHIN Appellant(s)

Versus

Commissioner of Central Excise, Customs and Service Tax COCHIN-CCE NULL C R BUILDING, I S PRESS ROAD, ERNAKULAM, COCHIN, - 682018 KERALA Respondent(s)

Appearance:

Shri Rajesh Kumar, CA Shri Akbar Basha, Advocate HIRAGANGE & ASSOCIATES #1010, 1st floor(Above Corp.Bank) 26th Main, 4th T Block, Jayanagar, BANGALORE - 560041 KARNATAKA For the Appellant

Shri Pakshi Rajan, Asst. Commissioner(AR) For the Respondent

Date of Hearing: 27/03/2015

Date of Decision: 27/03/2015

CORAM:

HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

Final Order No. 20863-20864 / 2015

Per : B.S.V. MURTHY

Even though 6 appeals have been listed in the regular cause list and the supplementary cause list, after hearing both the sides and going through the OIAs and considering the submissions, it was found that appeal Nos.ST/994 & 995/2010 relate to common OIA No.7&8/2010-ST and issue dealt with is refund claims filed by the appellants. Since the learned AR was not ready in respect of other appeals listed, the hearing in respect of other appeals is adjourned to 17/04/2015. Appeals adjourned are ST/990 to 993/2010.

2. After hearing both the sides for considerable time, it was found that the refund claims have been filed under a Boards circular No.56/5/2003-ST dt. 25/04/2003 wherein the Board had clarified that where a service is supplied to an output service exporter by a domestic supplier, he need not pay the tax if service is going to be utilised for export of output service considering the services provided as a secondary services used for export of service. The learned CA fairly agreed that there was no specific notification at that time. However, the claims filed by the appellant have been rejected on totally wrong assumptions. In the show-cause notice itself, it has been stated that appellant had taken CENVAT credit of tax paid on input services which itself is not correct. The original authority went on to consider the claim as the one filed under Notification No.12/2005. The Commissioner(Appeals) considered the claims under the circular and held that the circular does not define secondary services and there is no sufficient documents to establish the claim.

3. The above observations would show that first of all the refund claims filed have to be correctly appreciated, facts have to be considered and the law has to be applied. To be fair, the appellant should get an opportunity to consider their own stand afresh in view of the fact that when the refund claims were filed the law had not settled down and there were several views. Therefore it would be appropriate and both sides agree to the proposition that the matter should be remanded keeping all the issues open for consideration. The appellants get an opportunity to make fresh submissions to justify their claim under the relevant provisions of statute and the same may be considered as if filed within time limit. Department is also free to examine the claim afresh in accordance with law. All the issues are kept open.

4. In the result, the impugned orders are set aside and the matters are remanded to the original authority to consider the claim afresh. The appellants shall make detailed submissions so that the original authority can proceed to consider the issues afresh.

(Order pronounced and dictated in open court)

B.S.V.MURTHY TECHNICAL MEMBER

Raja.

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