M/S. Exfo Electro-Optical Engineering ... vs Commissioner Of Central Excise, Pune ...

(Arising out Order-in-Appeal No. PIII/RS/256/2011 dated 14.09.2011 passed by the Commissioner of Central Excise (Appeals), Pune III)

For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial)

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. Exfo Electro-Optical Engineering India P. Ltd. Appellant

Vs.

Commissioner of Central Excise, Pune III Respondent

Appearance:

None for the appellant Shri B. Kumar Iyer, (AR) for the respondent

CORAM:

Honble Mr. M.V. Ravindran, Member (Judicial)

Date of hearing : 13.04.2015 Date of decision : 13.04.2015

O R D E R No:..

This appeal is directed against Order-in-Appeal No. PIII/RS/256/2011 dated 14.09.2011.

2. None appeared on behalf of the appellant despite notice. As the appeal is coming up for the third time, I take up the appeal in the absence of representation from the assessee.

3. Heard the ld. Departmental Representative and perused the records.

4. On perusal of the record, it transpires that the appeal is directed towards revision of refund claim of `2,06,896/- on the ground that the service for which the refund amount is claimed were not received and consequently used in the registered premises of the appellant. Both the lower authorities have held that the services of which Cenvat Credit was availed by the appellant were received at the premises which were not registered with the department and the appellant is unable to evidence that the activities conducted were in relation to the output services performed by him.

5. I find that it is undisputed as to the fact that appellant has provided IT services which are exported; it is to be noted that appellant is eligible to avail Cenvat Credit and claim the refund of the service tax paid by the service provider if it remains unutilised. The only dispute in the case in hand is regarding the services rendered by the service provider is in the premises for which registration was not granted to the appellant.

6. I find the service which was rendered and on which the Cenvat Credit was availed by the appellant, are of input services in respect of the output services which is provided by the appellant i.e. IT enabled service. It is seen from the records that the appellant has specifically pleaded before the lower authorities that the output services which are provided by them is from their registered premises and that has got centralised accounting system. Subsequently, I do find that the appellant has registered or added the addresses from wherein the services were received for providing export services; in the registration certificate, which is an indication that the appellant is eligible to avail input service credit and having exported the services is eligible for the refund of the amount lying unutilised.

7. In view of the facts and circumstances of this case, I find the impugned order is unsustainable and liable to be set aside to the extent it is contested before the Tribunal.

8. Impugned order to the extent challenged before the Tribunal is set aside and the appeal is allowed with consequential relief, if any.

(Dictated in Court)

(M.V. Ravindran)

Member (Judicial)

//SR

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