Commissioner Of Customs ,Central ... vs Hyundai Motor India Engineering Pvt Ltd

[Arising out of Order-in-Appeal No. 13/2009 (H-IV) S. Tax dated 17/06/2009 passed by the Commissioner of Customs, Central Excise & Service Tax (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?

Commissioner of Customs ,Central Excise and Service Tax HYDERABAD-IV POSNETT BHAWAN, TILAK ROAD, RAMKOTI, HYDERABAD, - 500001 ANDHRA PRADESH Appellant(s)

Versus

HYUNDAI MOTOR INDIA ENGINEERING PVT LTD. 9TH FLOOE, NO-18, I LABS CENTER SOFRWARE UNIT LAYOUT MAHAPUR HYDERABD-81 Respondent(s)

Appearance:

Mr. B. C. Datta, Authorised Rep. For the Appellant

Mr. Pakshi Rajan, Addl. Commissioner (AR) For the Respondent

Date of Hearing: 20/02/2015

Date of Decision: 20/02/2015

CORAM:

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

Final Order No. 20441 / 2015

Per : B.S.V.MURTHY

The respondents filed refund claims under Notification No.5/2006-CE N.T dated 1.3.2006 on the ground that they could not utilize the accumulated credit available with them. There were three invoices for export of service during the month out of which in respect of two invoices, the original authority took the view that the refund claim filed in November 2008 was time barred and in respect of one invoice the claim was within the limited period prescribed under Section 11B of Central Excise Act, 1994. However, while allowing the refund he took a view that claim has to be calculated by treating the number of days available in November as the difference between the date of invoice and the last date of the month. Therefore claim was limited to 10% of the total amount claimed by treating the period as 3 days in the month of November in respect of invoice dated 27.11.2007. On an appeal filed by the assessee, the Commissioner (A) held it is not correct and held that the claim is admissible and full amount of credit should be refunded.

Revenue is in appeal against this decision.

2. For better appreciation, paragraph 6 which is relevant and discussed the quantum of refund is reproduced below.

6. As far as the restriction of the quantum of refund is concerned, in terms of the relevant Notification, the refund of unutilized input service credit will be restricted to the extent of the ratio of export turnover to the total turnover for the given period to which the claim relates i.e., {Maximum refund = Total CENVAT credit taken on input services during the given period x export turnover + Total turnover}. There is no stipulation that the appellants should establish that entire services shown in the invoice dated 30.11.2007 were rendered only during 27.11.2007 to 30.11.2007. On this point, I do not find any justification in the argument put forth by the lower authority. Hence, I hold that the appellants are eligible for the entire refund in respect of the export undertaken vide invoice dated 30.11.2007. 2.1 I find myself in agreement with these observations and therefore the stand taken by the Revenue that the refund should be limited to 3 days period as done by the original authority has no support from the statute. Accordingly, the appeal deserves to be rejected and is rejected.

3. At this juncture, the learned counsel for the respondents submits that they had filed a cross objection. However, he fairly agrees that the Cross Objections were filed only after they received notice of hearing in respect of departments appeal and further it is yet to be numbered. On going through the copy of the Cross Objection produced by the learned counsel it is seen that on 4.11.2014 only this has been filed. However, in my opinion, this does not deserve any consideration in view of the fact that if the assessee was aggrieved with the impugned Order-in-Appeal in respect of two invoices, they should have filed appeal as and when they received the Order-in-Appeal. It is not the case of the assessee that they did not receive the Order-in-Appeal. Under the circumstances, the Cross Objection filed after six years cannot be considered.

3.1 Another submission that the learned counsel for the assessee made was that the original adjudicating authority may limit the refund by applying a wrong formula. It is his submission that the total export turnover during November 2007 and total domestic turnover during November 2007 should be applied to the formula and his apprehension is that original authority may consider the export under that particular invoice in respect of which refund is being granted. It is not possible to sort out apprehensions in the minds of assessee while considering the appeals filed by assessee or the Revenue by the Tribunal. The Tribunal can pass orders only on issues involved in the appeal and issue as to how the original authority has to calculate the turnover is not the one before me and therefore at this stage it will not be appropriate to pass an order on this issue.

4. The appeal filed by the Revenue is rejected.

(Order pronounced in open court)

B.S.V.MURTHY TECHNICAL MEMBER rv 2