Apollo Health Street Ltd vs Commissioner Of Central Excise, ...

[Arising out of Order-in-Appeal No. 31-2011 dated 27/04/2011 and No.40/2011(H-II) S.Tax dt. 25/05/2011 passed by CC,CE&ST(Appeals-II), Hyderabad]

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?

APOLLO HEALTH STREET LTD APOLLO HEALTH CITY, JUBILEE HILLS, HYDERABAD, AP Appellant(s)

Versus

Commissioner of Central Excise, Customs and Service Tax HYDERABAD-II NULL L.B STADIUM ROAD, BASHEERBAGH, HYDERABAD, - 500004 ANDHRA PRADESH Respondent(s)

Appearance:

Shri Ankit Tiwari, C.A. For the Appellant

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

Date of Hearing: 16/04/2015

Date of Decision: 16/04/2015

CORAM:

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

Final Order No. 21115-21116 / 2015

Per : B.S.V.MURTHY

In both the appeals, issue involved is common and is same and therefore both the appeals are taken together and a common order is passed. The appellant is a company engaged in providing information technology software service (ITSS) and business auxiliary service(BAS). They filed two refund claims for refund of unutilized CENVAT credit under Rule 5 of CENVAT Credit Rules, 2004 read with Notification No.5/2006-CE(NT) dt. 14/03/2006. In the impugned order, the learned Commissioner has taken the view that a portion of the refund is not admissible since credit was taken on the basis of debit notes.

2. After hearing both the sides and after going through the records, I find that in this case, the debit notes issued contain the details which are essential as per the provisions of Rule 9(2) of CENVAT Credit Rules 2004 since the debit notes contain the details such as service tax payable, description of taxable service, value of taxable service, registration number and name of the service provider. Moreover I also find that on the very same issue in the case Pharmalab Process Equipments Pvt. Ltd. Vs. CCE, Ahmedabad [2009(16) STR 94 (Tri. Ahmd.)] and in the case of Karur KCP Packaging Pvt. Ltd. Vs. CCE, Trichy [2009(16) STR 609 (Tri. Chennai)], this Tribunal had taken a view that credit can be taken on such debit notes. In view of the above, I do not find any merit in the impugned orders. Accordingly, the impugned orders are set aside and appeals are allowed and the matters are remanded to the original adjudicating authority for sanctioning the refund held admissible.

(Operative part of this order pronounced in open court)

B.S.V.MURTHY TECHNICAL MEMBER Raja.

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