Ness Technologies (India) Private ... vs Commissioner Of Service Tax, ...

[Arising out of Order-in-Appeal No. 678/PD/14 dated 26/6/2014 passed by the Commissioner of Central Excise & Service Tax (Appeals IV) Mumbai-I]

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? =======================================================

Ness Technologies (India) Private Limited : Appellants

VS

Commissioner of Service Tax, Division-V, Mumbai : Respondent

Appearance

Shri Mihir Deshmukh, 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: 8/6/2015 Date of decision: 8/6/2015

ORDER NO.

Per : Ramesh Nair

This appeal is directed against Order-in-Appeal No. 678/PD/14 dated 26/6/2014 passed by the Commissioner of Central Excise & Service Tax (Appeals IV) Mumbai-I, wherein Ld. Commissioner (Appeals) in the appeal No. 534/2013 rejected the refund claim on the ground of time bar in terms of Notification No. 40/2012-ST dated 20/6/2012, wherein as per para 3(e) of the said notification, claim of refund shall be filed within one year from the end of the month in which actual payment of service tax was made by such SEZ developer or unit to the registered service provider or such extended period by the Asstt. Commissioner of Central Excise or Dy. Commissioner of Central Excise, as the case may be. The Ld. Commissioner (Appeals) contended that the appellant submitted that the payment to the service provider during the period July-Sep 2012 have been paid however the same could not be co-related with the bank statement submitted by the appellant on the ground the refund was rejected.

2. Shri Mihir Deshmukh, Ld. Counsel for the appellant submits that refund claim was filed well within the time period as stipulated in the notification i.e. within one year from the date of payment of service tax by the SEZ unit to the appellant. It is his submission that they have submitted all the documents with the lower authorities and the Commissioner (Appeals), therefore it is not correct on the part of the lower authority to state that there is no co-relation of the payment details with the bank statement.

3. Shri A.B. Kulgod, Asstt. Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that co-relation cannot be established between bank statement and claim made by the appellant, therefore Ld. Commissioner (Appeals) was right in giving finding that the period of one year could not be established before the lower authority by the appellant and therefore the Ld. Commissioner (Appeals) rightly rejected the refund claim.

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

5. I find that the appellant, though produced bank statement before the lower authority, but no detail was found to show co-relation between invoices raised and realization in the bank statement. Therefore the bank statement in isolation cannot be useful to establish co-relation. As regard the time period provided under the notification, the one year should be reckoned from the date of receipt of the payment of service tax from SEZ to the service provider (here the appellant). Since proper co-relation was not submitted by the lower authority, the lower authority was handicap to decide the matter in favour of the appellant. In view of this position, I remand the matter to the original adjudicating authority. The appellant has to produce proper co-relation alongwith relevant bank statement and copies of invoices to show that individual invoice wise realization of the Service tax and service tax made by the service recipient to the appellant. Needless to say that the adjudicating authority shall grant personal hearing to the appellant before passing denovo adjudication order. The matter is remanded to the original adjudicating authority.

(Dictated in court)

Ramesh Nair Member (Judicial)

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