Igs Imaging Services India Pvt Ltd vs Commissioner Of Service Tax ...

[Arising out of Order-in-Appeal No. 534 to 538-2010 dated 01/10/2010 passed by CST, Bangalore]

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? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes

IGS IMAGING SERVICES INDIA PVT LTD INDECOMM HOUSE, # 30, LASKER HOSUR ROAD, ADUGODI, BANGALORE 560032 Appellant(s)

Versus

Commissioner of Service Tax BANGALORE-SERVICE TAX NULL 1ST TO 5TH FLOOR, TTMC BUILDING,above BMTC BUS STAND,DOMLUR BANGALORE, - 560071 KARNATAKA Respondent(s)

Appearance:

Shri S. Ananthan, CA For the Appellant

Shri S. Teli, Deputy Commissioner(AR) For the Respondent

Date of Hearing: 16/03/2015

Date of Decision: 16/03/2015

CORAM:

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

Final Order No. 20734 / 2015

Per : B.S.V. MURTHY

The appellant is an STPI unit and periodically filed refund claims in respect of inputs services used for providing output services since they cannot utilize CENVAT credit taken by them under Rule 5 of CENVAT Credit Rules 2004 read with Notification No.5/2006-CE(NT).

2. The issue before me is whether the lower authorities were correct in rejecting the refund claim on the ground that the same was filed beyond the period of one year. In this case, the refund claim was filed on 19/11/2008.

3. The learned CA would submit that the limitation is not at all applicable as per the decision of the Honble High Court of Karnataka in the case of mPortal India Wireless Solutions (P) Ltd. Vs. CST, Bangalore [2012(27) STR 134 (Kar.)] and therefore the impugned order has to be set aside and the refund claim has to be allowed. Alternatively, he would submit that the decision of this Tribunal in the case of Apotext Research Pvt. Ltd. and others [Interim Order No.79 to 152/2014 dt. 12/09/2014] reported in 2014-TIOL-1836-CESTAT-BANG to submit that the date of receipt of consideration has to be taken into account for calculating the limitation period of one year and if done so, in addition to amount already held admissible by the Commissioner(Appeals), some more amount would become admissible since for the services rendered from 1st September onwards, consideration was received only from end November 2007. Further he would also submit that while learned Commissioner(Appeals) has recorded his findings that the appellant would be eligible for refund in respect of the amounts received subsequent to 17/11/2007, in the order portion, he has given the date as 16/05/2008 and this also requires to be corrected.

4. Learned AR would support the order of Commissioner(Appeals).

5. I have considered the submissions. In paragraph 6 of the impugned order, the learned Commissioner has clearly held that the assessee is eligible for refund for the period of one year prior to the date of filing the refund claim. In the order portion also, he has held that the claim is hit by limitation of time prior to 16/11/2007. Further in paragraph 7, he has held that the original authoritys order rejecting the refund claim on the ground that the final service was not taxable is not correct. Nevertheless in the order portion after observing that the date of limitation for counting the date for limitation it should be 16/11/2007, finally he has held that refund of accumulated credit is sanctioned on the input services used after 16/05/2008 which clearly appears to be a typographical error. The learned CA would submit that the order of the Commissioner(Appeals) has been implemented and the refund claims prior to 16/05/2008 has been sanctioned.

6. In the Interim Order in the case of Apotex & others referred to above, this Tribunal has clearly held that the date of receipt of consideration is relevant for calculating relevant date and the limitation would be applicable as per the provisions of Section 11B and when these two principles are applied to the present case, the appellant would be eligible for refund in respect of the amounts received after 18/11/2007. Accordingly, the appeal is allowed to the extent of refund claim on the basis of receipt of payments to the services rendered from 18/11/2007 to 15/05/2008 which was not originally allowed by the Commissioner(Appeals). As regards decision in the case of mPortal of Honble High Court relied upon, this was considered in Apotex calse by the Tribunal. The appeal is decided as above.

(Order pronounced and dictated in open court)

B.S.V.MURTHY TECHNICAL MEMBER

Raja.

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