Commissioner Of Central Excise, ... vs M/S. Nihilent Technologies Pvt. Ltd

[Arising out of Order-in- Appeal No. PUN-EXCUS-003-APP-390-13-14 dtd. 27/3/2014 passed by the Commissioner of Central Excise(Appeals) Pune-III]

For approval and signature:

Honble Mr Ramesh Nair, Member(Judicial)

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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 : 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?

Commissioner of Central Excise, Pune-III : Appellants

VS

M/s. Nihilent Technologies Pvt. Ltd. : Respondent

Appearance

Shri. A.B. Kulgod, Asst. Commissioner(A.R.) for the Appellants None for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 15/4/2015 Date of decision /2015

ORDER NO.

Per : Ramesh Nair

This appeal is directed against Order-in- Appeal No. PUN-EXCUS-003-APP-390-13-14 dtd. 27/3/2014 passed by the Commissioner of Central Excise(Appeals) Pune-III, wherein Ld. Commissioner (Appeals) modified the order-in-original No. R/454/STC/PIII/2013 dated 23/9/2013 passed by the Commissioner of Central Excise, Pune-III Commissionerate and consequently a refund of Rs. 6,44,714/- was allowed with consequential relief. The fact of the case is that the respondent filed refund claim amounting to Rs. 34,15, 210/- in respect their export of Information Technology Software Services valued at Rs. 14,11,92,507/- under Rule 5 of Cenvat Credit Rules, 2004 for the period April, 2012- June, 2012. The adjudicating authority sanctioned the refund claim of Rs. 27,43,149/- however rejected the partial claim of Rs. 6,72,061/-. Aggrieved by the said order to the extent of rejection of claim of Rs.6,72,061/-, respondent filed appeal before the Commissioner(Appeals) who vide impugned order dated 27/3/2014 modified the order in original and allowed the refund claim of Rs. 6,44,714/-. Dissatisfied with the said impugned order the Revenue is before me.

2. Shri. A.B. Kulgod, Ld. Asst.Commissioner(A.R.) appearing on behalf of the Revenue appellant reiterates the ground of appeal. He further submits that the Ld. Commissioner (Appeals) has wrongly deducted the value of refund claim which is hit by limitation of one year from the total turnover which resulted additional refund claim. He submits that this is not correct as per the definition of total turnover provided under clause (E) under Notification No. 27/12-CE(NT) dated 18/6/2012.

3. None appeared on behalf of the respondent nor any communication is found on record. Therefore I proceed to decide appeal on merit.

4. I have carefully considered the submission made by Ld. A.R. and perused the record.

5. On-going through the impugned order, I find that the Ld. Commissioner(Appeals) has deducted value of refund claim which is hit by limitation correctly in accordance with the export turnover as well as total turnover provided under notification. Findings of the Ld. Commissioner(Appeals) is reproduced below:-

12. Therefore, as per discussions in Paras 8 and 10 above, the value of Export turnover of services comes to Rs.11,39,06,643/- (Rs.14,11,92,507/- minus Rs.2,64,94,460/- minus Rs.7,91,404/-). Further, under new Rule 5 of the CCR, the definitions of Export turnover of services and Total turnover are as under:

(D)  Export turnover of services means the value of the export services 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.

(E)  Total turnover means sum total of the value of 

(a) all excisable goods cleared during the relevant period including exempted goods., dutiable goods and excisable goods exported.

(b) export turnover of services determined in terms of clause (D) of sub rule (1) above and the value of all other services, during the relevant period, and

(c) all inputs removed as such under sub-rule (5) of rule 3 against an invoice, during the period for which the claim is filed.

Accordingly, the Total Turnover comes to Rs.11,60,96,813/- (Rs.11,39,06,643/- + Rs.21,90,170/-), i.e. Export turnover of services plus value of all other services.

Net CENVAT Credit = Rs.34,53,004/- (Rs.34,63,187  Rs.15,183) Refund amount = Export turnover of Services X Net Cenvat Credit Total Turnover Refund amount = 11,39,06,643 X 34,53,004 = 33,87,863/-

11,60,96,813

As refund of Rs.27,43,149/- has already been sanctioned vide the impugned Order-In-Original, further refund of Rs.6,44,714/- (Rs.33,87,863/- minus Rs.27,43,149/-) is admissible to the Appellant.

From the above findings it is observed that while taking total turnover the Ld. Commissioner has considered Rs. 11,60,96,813/-which was disputed by the Revenue on the ground that the value of Rs. 2,64,94,460/- and 7,91,404/- though same was correctly deducted from export turnover, the same should not have been deducted from total turnover. I find that in clause (B) of Clause (E) of Sub rule(1), it is provided that while taking total turnover of export, turnover of service determined and clause (B) of Sub rule (1) as to be considered. If the export turnover in terms of clause (D) is taken then the amount comes to Rs. 11,39,06,643/-and value of other services i.e. Rs. 21,90,170/- is added then total turnover comes to Rs. 11,60,96,813/- which in my considered view was taken correctly by Ld. Commissioner(Appeals), therefore calculation as per the formula which resulted into further refund of Rs. 6,44,714/- is correct and in terms of provision of Rule 5 of Cenvat Credit Rules, 2000. In view of unambiguous findings of Ld. Commissioner(Appeals) and on my above discussion, I am of the considered view that the order passed by the Ld. Commissioner(Appeals) is just, proper and legal which does not require any interference. I therefore upheld the impugned order and dismiss the appeal of the Revenue.

(Order pronounced in court on ___________)

Ramesh Nair Member (Judicial)

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