M/S. Global Advertisement Services Pvt ... vs Commissioner Of Central Excise, ...

[Arising out of Order-in- Appeal No. PIII/RP/09-10/2013 dtd. 14/1/2013 passed by the Commissioner (Appeals III) Central Excise, Pune]

For approval and signature:

Honble Mr Ramesh Nair, Member(Judicial)

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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 : 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. Global Advertisement Services Pvt Ltd. : Appellants

VS

Commissioner of Central Excise, Service tax Cell : Respondent

Appearance

Shri. Prasad Paranjape, Advocate for the Appellants Shri. A.B. Kulgod, Asst. Commissioner(A.R.) for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 17/4/2015 Date of decision 17/4/2015

ORDER NO.

Per : Ramesh Nair

These two appeals are directed against Order-in- Appeal No. PIII/RP/09-10/2013 dtd. 14/1/2013 passed by the Commissioner (Appeals III) Central Excise, Pune, wherein Ld. Commissioner(Appeals) rejected the appeal of the appellant. The issue involved in this case is whether the appellant, who is SEZ unit are eligible for refund of accumulated Cenvat Credit in respect of input used in the out put service which were exported in terms of Rule 5 of Cenvat Credit Rules, 2004.

2. Shri. Prasad Paranjape, Ld. Counsel for the appellant submits that issue involved in the present case has already been decided by this Tribunal in the appellants own case reported in [2012-TIOL-1478-CESTAT-MUM]. He submits that despite the clear order of this Tribunal which was produced before the Ld. Commissioner(Appeals) their appeal was rejected. He submits that in view of the above Tribunals order their appeal deserve to be allowed.

3. On the other hand, Shri. A.B. Kulgod, Ld. Asst. Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order.

4. I have carefully considered the submissions made by both the sides and perused the record.

5. I have read the order of this Tribunal in appellants own case as reported in [2012-TIOL-1478-CESTAT-MUM]. Relevant para of the judgment is reproduced below:

5. In this case there is no dispute about the fact that the appellant has received duty-paid input service and such duty-paid input service have been utilized in rendering the output service which has been exported. Further, the appellant is also registered with the service tax authorities under the category of Business Auxiliary Service'. As clarified by the Board in the Circular no. 105/8/2008 dated 16.09.2008 it is for the jurisdictional Excise/Service Tax authorities to deal with the refund claims filed by the SEZ units. Therefore, it is very clear that the appellant is eligible for refund of service tax paid which was not required to be paid under section 11B of the Act itself, provided that the appellant has filed the refund claim within the prescribed time-limit and the bar of unjust enrichment does not apply. In the instant case, as the appellant has exported the output service, hence the principle of unjust enrichment does not apply. Therefore, the only point that needs to be seen is whether the appellant has made the refund claim within a period of one year from the date of payment of duty and in respect of such duties, he would be rightly entitled for the benefit of refund under section 11B of the Act itself.

6. In view of the above position I set aside the impugned order and remand the case back to the original adjudicating authority to examine the claim of the appellant with respect to the time-limit involved and if the refund claim is in time, to sanction the refund in accordance with law.

7. Thus, the appeal is allowed by way of remand.

From the above clear findings of this Tribunal it has been conclusively held that refund under Rule 5 to the SEZ unit is admissible. The appellant produced the said judgment before the Commissioner(Appeals) in this regard he recorded his findings, which is reproduced below:

It is clear that Honourable CESTAT has not directed that refund of CENVAT credit under Notification No. 5/2006 CE(N.T.) is admissible to the appellant. The directions are to sanction the refund in accordance with law... From the plain reading of this Tribunal order as cited above, it is clear that the Tribunal has conclusively held that refund under Rule 5 is admissible to the appellant. The matter was remanded only to examine the claim of the appellant with respect to the time limit involvement and it was also directed that if the refund claim is in time, to sanction the refund in accordance with law. The Ld. Commissioner(Appeals) has gravely mis-understood the order of this Tribunal and he has again gone in merit and rejected the claim. Thus Ld. Commissioner(Appeals) has gravely erred in understanding findings of this Tribunals order dated 30/8/2012 in the appellants own case which clearly applied in the present case and accordingly appellants are entitled for the refund. The impugned order is set aside and appeals of the appellants are allowed with consequential relief, if any, in accordance with law.

(Operative part pronounced in court)

Ramesh Nair Member (Judicial)

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