Egon Zehnder Informations And vs Cce & St, Gurgaon-Ii

[Arising out of Order-in-Appeal No. 05-10/ST/APPEAL-II/SM/GGN/2014-15 dated 31/12/2014 passed by the Commissioner (Appeals-II) Service Tax, Gurgaon]

1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it would 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 Department Authorities?

Egon Zehnder Informations And Appellant

Research Services Pvt. Ltd.

Vs.

CCE & ST, Gurgaon-II Respondent

Appearance:

Present for the Appellant: Shri Anuj Aggarwal, C.A.

Present for the Respondent: Shri R.K. Grover, DR

Coram: Honble Ms. Sulekha Beevi C.S., Member (Judicial)

Final Order No.52800-52805/2015

Per: Sulekha Beevi C.S.

The appeals are filed against the order which upheld the denial of refund of unutilized Cenvat credit.

2. The appellant filed refund claims under Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No. 5/2006 CE(NT) dated 14.03.2006 for the period April 2010 to June 2010, July 2010 to September 2010 and January 2011 to March 2011. The claim related to services like Management, Maintenance or Repair Services Rent-a-Cab services, Tele-communication services, Manpower Recruitment services, Security Services, Chartered Accountant Services, Renting of Immovable Property services, Custom House Agent services, Air travel agent services, and Business Support Services. A part of the refund claim was denied by the adjudicating authority, against which appeal was preferred by the appellant, before the Commissioner (Appeals). Vide the impugned order the Commissioner (Appeals) upheld the rejection of refund observing that the impugned services for which refund was claimed has no nexus with the output service exported. Aggrieved the appellant is before the Tribunal.

3. At the time of hearing, the Chartered Accountant, Shri Gaurav Gupta, who appeared on behalf of the appellants submitted that the appellants were not provided sufficient opportunity to establish their case and that the first appellant authority has upheld the rejection of refund in a mechanical manner without application of mind. He submitted that the appellant had appeared before the Commissioner (Appeals) on 20.11.2014 for personal hearing. The appellant offered to submit the copy of invoices to establish the contentions of the appellant. The Commissioner (Appeals-II) allowed a further opportunity and directed them to produce the invoices on or before 10.12.2014 for examination before the Superintendent. The appellant along with CA, Shri Nishant Gupta appeared at the office on 10.12.2014 to submit the documents for verification. But they were told that their documents could not be looked into as the concerned officer was not available on that day and that a fresh date will be given to them for appearance and submission of documents. Though they waited for the fresh date, the impugned order was passed by the Commissioner (Appeals) on 31.12.2014 and the appellant received the same on 5.01.2015. It is submitted that refund has been rejected stating that there is no need to examine the invoices.

4. In the impugned order the Commissioner (Appeals) has stated as under:-

The appellants have also stated that they would file relevant invoices in respect of six appeals to the concerned division office for verification, as promised by them during the course of personal hearing held on 20.11.2014. These were not considered for verification as those documents/invoices were not having any nexus with the export of services.

It is evident from the above that the appellants have been denied an opportunity to submit documents and establish their contentions. It is stated that it is not necessary to verify the documents as the invoices do not have any nexus with the export of services. The appellate authority who is also a fact finding authority is duty bound to look into the documents and contentions of the appellants. Without verification of any records, the appellate authority has proceeded in a mechanical fashion to uphold the order of rejection of refund claim.

5. On perusal of records and hearing the submissions of the consultant appearing for the appellant, I am of the opinion that it is a fit case for remand to the Commissioner (Appeals) for denovo adjudication of the appeal. The Commissioner (Appeals) shall give the appellant sufficient opportunity for personal hearing and also to submit documents/invoices. In case the invoices/documents are submitted by the appellants, Commissioner (Appeals) shall consider the documents as required under law.

(Pronounced in the open Court)

(Sulekha Beevi C.S.)

Member (Judicial)

K. Gupta

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