Commissioner Of Central Excise, ... vs M/S. Tata Autocomp Systems Pvt Ltd
- CitationAPPEAL NO. ST/188/11-MUM
Ratio decidendi
The rule this decision rests on
Where a refund of service tax paid on input services used for exports is claimed, and the service is not among those specified in the notification governing refunds, the refund remains admissible under Rule 5 of the Cenvat Credit Rules, 2004, read with the Board's circular, provided the exporter establishes that the tax was paid, that the export took place, and that there is a nexus between the input service and the exported goods, with the service identified, the tax paid shown, and the particulars required under Rule 4(a) furnished. Where the tax was paid during a period preceding the issuance of a notification exempting that service from payment under the reverse charge mechanism, the notification's time limit for refund claims does not bar a refund of tax already paid for that earlier period, as the claim relates to a period before the notification took effect.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in- Appeal No. PIII/VM/322/2010 dated 1/12/2010 passed by the Commissioner of Central Excise (Appeals-III), Pune]
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?
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Commissioner of Central Excise, Pune-III : Appellants
VS
M/s. Tata Autocomp Systems Pvt Ltd. : Respondent
Appearance
Shri. R.K. Das, Dy. Commissioner(A.R) for the Appellant None for the Respondent
CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Date of hearing: 9/1/2015 Date of decision 9/1/2015
ORDER NO.
Per : Ramesh Nair
The appeal is directed against order-in-appeal No. PIII/VM/322/2010 dated 1/12/2010 passed by the Commissioner of Central Excise (Appeals-III), Pune, wherein the Ld. Commissioner(Appeals) has set aside the order-in-original NO. R-41/2010-11 dated 14/6/2010 and allowed the appeal of the respondent. The issue involved is that the respondent filed refund application dated 1/4/2010 for Rs. 4,16,024/-under the provision of Notification No. 17/2009 ST dated 7/7/2009 against service tax admittedly paid by them towards services used for the export of the goods, which has taken place during the period April, May and June 2009. The adjudicating authority sanctioned the claim of Rs. 2,70,528/- and rejected the part claim of Rs. 1,45,489/- in respect of Commission Agent Services. Aggrieved by the order-in-original the respondent filed the appeal before the Commissioner(Appeals), who vide order-in-appeal dated 1/12/2010 allowed the appeal of the respondent. Hence the Revenue is before me.
2. Shri. R.K. Das, Ld. Dy. Commissioner(A.R) appearing for the Revenue submits that the refund is time bar inasmuch as the limit stipulated in the Notification No. 17/2009 ST dated 7/7/2009 is six months whereas the respondent filed the refund claim beyond the stipulated time limit. He therefore prays for allowing the appeal of the Revenue.
3. None appeared for the respondent. It is noticed that this matter has come up for hearing earlier on various dates on 21/3/2014, 7/5/2014, 6/6/2014, 11/7/2014, 30/8/2014 and 24/9/2014 but there is no representation from the respondent side. Therefore I proceed to decide the matter on merit.
4. I have carefully considered the submissions made by Ld. A.R. and perused the record.
5. I find that Ld. Commissioner (Appeals) has allowed the appeal of the respondent with the following findings:
5. I have carefully considered the case records, the oral and written submission made by the appellant. The issue before me is the availability of refund of service tax paid under the reverse mechanism on the Commission paid to the foreign agents. I find that this service was recently exempted from payment of taxes under reverse mechanism vide Notification No. 18/2009 dated 7-7-09. Before, the appellant was required to pay the tax and then claim the refund as per the provisions of Notification No. 41/2007. I find that this could be the reason that this service does not find a place in the specified services. Here I find that it is not denied that service tax has been paid. It is also not denied that export has been place. Though commission agents services have not been specified in the Notification No. 17/2009 as an eligible service for getting the benefit of refund, the fact is that the tax is paid and the same has not been denied. Further, I find that in the instant case the claim pertains to the period April, May and June 2009 whereas Notification No. 17 & 18 of 2009 are dated 7-7-2009. Further, I find that the appellant has shown the co-relation with the service providers bills and the exporter invoice. The appellants contention is correct to the extent that they have paid the service tax claiming it as refund which cannot be denied now to them because Notification No. 17/09 and 18/09 was issued in July 09 whereas the refund pertains to the period from April 09 to Jun 09.
6. Further, I cannot ignore the Boards circular No. 1320/01/2010 ST dated 19-01-2001 which clearly states that In order to zero-rate the exports, the Rule 5 of Cenvat Credit Rules, 2004 provides that such accumulates credit can be refunded to the exporter subject to stipulated conditions Further, the said Circular lays down three basic conditions. They are i) so far the nature of the service which has been received by the exporter can be ascertained ii) tax paid therein is clearly mentioned and iii) other detail as required under Rule 4(a) are mentioned the refund should be allowed if the input service has a nexus with the service/goods exported as discussed earlier. I find that the appellant fulfills all the three conditions. Finally the same Circular states that It is expected that with the clarifications provided and liberalization of procedure, most of the impediments to smooth and expeditious disposal of exporters claim for refund of accumulates credit would be removed. It s apparent that the Governments intention is to clear all the Refund claims at the earliest without raising procedural and technical objections. In this case I am bound to also follow the ratio of the my earlier decision in respect of the same appellant bearing No. PII/VM/230-232/2010 dtd 22-9-10.
7. In view of the above discussions and findings and Boards Circular cited in particular, I am inclined to allow the appeal.
8. The appeal is allowed.
From the above findings, it is observed that the Ld. Commissioner(Appeals) has relied upon the Board Circular No. 1320/01/2010 ST dated 19-01-2010, which is squarely applicable in the present case.
5.1 As per the said Circular refund otherwise admissible under Rule 5 of Cenvat Credit Rules, 2004. There is no dispute regarding nexus between services and export made by respondent. I therefore do not find any infirmity in the impugned order. The appeal of the Revenues is therefore dismissed.
(Dictated in court)
Ramesh Nair Member (Judicial)
sk
5
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