M/S. Panduronga Timblo Industries vs Commissioner Of Central Excise & ...

[Arising out of Order-in-Appeal No. GOA-EXCUS-000-APP-020-13-14 dtd. 27/2/2014 passed by the Commissioner (Appeals), Central Excise & Customs, Goa]

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. Panduronga Timblo Industries : Appellants

VS

Commissioner of Central Excise & Customs, Goa : Respondent

Appearance

Shri Bharat Raichandani, Advocate for the Appellants Shri A.B. Kulgod, Asstt. Commissioner (A.R.) for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 15/6/2015 Date of decision: 15/6/2015

ORDER NO.

Per : Ramesh Nair

This appeal is directed against Order-in-Appeal No. GOA-EXCUS-000-APP-020-13-14 dtd. 27/2/2014 passed by the Commissioner (Appeals), Central Excise & Customs, Goa, wherein Ld. Commissioner (Appeals) has partly allowed the refund claim and rejected part of the refund claim amounting to Rs.1,49,403/-.

2. The fact of the present case is that appellant are holding service tax registration No. AACFP6258PSD001. The appellant filed refund claim of service tax under Notification No. 17/2009-ST dated 7/7/2009. The adjudicating authority sanctioned part of the refund and part was rejected. Against the said rejection part of the claim, the appellant filed appeal before the Commissioner (Appeals), who vide the impugned order allowed the refund of Rs.2,29,336/- and rejected the refund claim Rs.1,49,403/- on two invoices Nos. 9160001008 and 9160001009 both dated 25/10/2010 filed on the ground that in both the invoices issued by Mormugao Port Trust in favour of M/s. Agencia Ultramarina Pvt. Ltd. and not in the name of the appellant.

3. Shri. Bharat Raichandani, Ld. Counsel for the appellant submits that in respect of both the invoices service was received by the appellant and M/s. Agencia Ultramarina Pvt. Ltd is the agent of the appellant, therefore actual user of the services are the appellant and the payment against these invoices also made by the appellant, therefore recipient of the services is not M/s. Agencia Ultramarina Pvt. Ltd. but it is the appellant. He submits that subsequent to the order of the Ld. Commissioner (Appeals), appellant has got both the invoices corrected wherein the name of the appellant is clearly appearing as exporter, the copy of the corrected bills have been submitted alongwith these appeal. He further submits that the only reason for rejection is that the name of the appellant was not appearing on the invoices. Further he also referred to one Bill NO. 9100001204 dated 19/10/2010 which is identical invoices and the name of the appellant appearing therein in respect of the said invoices Ld. Commissioner in the impugned order has allowed the refund, therefore after rectifying both the invoices which are subject matter of this appeal, the refund should be allowed.

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

5. I find that only reason for disallowing the refund by the Ld. Commissioner (Appeals) is that in the bill of Mormugao Port Trust bearing Nos. 9160001008 and 9160001009 both dated 25/10/2010 not appearing bearing the name of appellant. Now the appellant have produced corrected bills, wherein the appellants name is clearly appearing. I also observed that in the identical bill wherein the name of the appellant was appearing, refund was allowed by the Ld. Commissioner (Appeals). Therefore after making these corrections in respect of both the invoices, in my considered view, refund must be allowed. However, since these corrected invoices are produced first time before me, it will be appropriate that the matter should be remanded to the original adjudicating authority to process the claim after verifying both the corrected invoices. Needless to say that the appellant should be given sufficient opportunity of personal hearing to submit the corrected invoices and any other documents if deems fit. I, therefore, allow the appeal by way of remand with the direction that original adjudicating authority shall verify both the corrected invoices and thereafter process the refund claim and pass a speaking order, in accordance with law.

(Dictated in court)

Ramesh Nair Member (Judicial)

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