M/S Asia Pacific Pvt. Ltd vs Commissioner Of Customs

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT No. I

Appeal No. ST/333/11

(Arising out of Order-in-Appeal No. RBT/45/2011 dated 18.02.2011 passed by Commissioner of Central Excise (Appeals), Mumbai I)

For approval and signature:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)

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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 : No 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?

M/s Asia Pacific Pvt. Ltd.

Appellant Vs.

Commissioner of Customs, Mumbai Respondent

Appearance:

Shri Harish Bindumadhavan, Advocate for appellant Shri S.R. Nair, E.O. (AR) for respondent

CORAM:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)

Date of Hearing: 05.08.2015 Date of Decision: 05.08.2015

ORDER NO Per: M.V. Ravindran

This appeal is directed against Order-in-Appeal No. RBT/45/2011 dated 18.02.2011.

2. The relevant facts that arise for consideration are appellant herein claiming refund of CENVAT credit of the service tax paid on the input services under Rule 5 of the CENVAT Credit Rules 2004. The Asst. Commissioner rejected the refund partially on the ground that CENVAT Credit for input services received prior to registration are not eligible and refund pertaining to input service distributor of the Bangalore office are not eligible and input services like House Keeping, BSS, Insurance Service, Real Estate Agent service, Banking and other Finance services, Cleaning activity services, catering services, Professional Consultancy services etc. are not used in providing taxable service hence not eligible for refund. Aggrieved by such an order, the appellant preferred an appeal before the first appellate authority. The first appellate authority agreed with the appellants contentions as to eligibility to avail refund of the service tax paid on the services such as BSS, insurance, real estate agent, house keeping, banking and other financial services, cleaning, catering and consulting services but agreed with the findings of the adjudicating authority that the service tax credit availed before registration of the input service distributor is not eligible to be availed as refund.

3. Learned Counsel would submit that an identical issue of the very same assessee for the period May 2007 to July 2007 was heard by this Bench in Appeal No. ST/326/11-Mum and vide Order No. A/830/14/SMB/C-IV dated 21.4.2004 allowed their appeal on merits and produced a copy of the said order.

4. Learned D.R reiterated the findings of the lower authorities.

5. On consideration of the submissions made by both the sides and perusal of the records, we find from the impugned order that the refund claim of unutilized CENVAT credit has been mainly rejected only on the ground that the CENVAT credit availed on the invoices issued by input service distributor before the registration, is incorrect. The period involved in this case is August 2007 to December 07. We do find that the learned Counsel was correct in submitting that an identical issue of the same appellant was heard and disposed of by this Bench vide final order dated 21.4.2004. We reproduce the findings of the Bench:-

5. Considering the fact that the Honble High Court has held that for entitlement of CEN on input service, registration is not a pre-condition for claiming the credit. Therefore, relying on the decision of the Honble High Court of Karnataka herein above, which will prevail over the decision of the Tribunal, I hold that the appellant are entitled for refund claim filed by them.

5.1 It may be noticed that an identical issue for the earlier period, this Bench held that CENVAT credit on service tax is available to the appellant. Accordingly, the impugned order to that extent it is challenged in this appeal, we find that the same is not sustainable. Accordingly we set aside the impugned order and allow the appeal to that extent it is challenged before us. (Dictated in Court)

(C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial)

nsk

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Appeal No. ST/333/11