Obulapuram Mining Company Pvt. Ltd vs Commissioner Of Central Excise, ...
- CitationAppeal No. 37/2009
Ratio decidendi
The rule this decision rests on
The denial of refund on the ground that a debit note is not a document specified in the relevant rule is not sustainable where the debit note contains all the details required under the Cenvat Credit Rules; in such a case the claim is to be verified by the original authority on the documents and extended if the requirements are met. Where the service provider has classified the services under one of the services specified in Notification No. 41/2007-ST, the benefit of that notification may be extended; the test is how the service provider has classified the service, not merely the nature of the service received by the assessee, so the matter is to be examined by the original authority on that basis. A refund denied for want of production of documents, where the assessee asserts they were produced, is to be re-examined by the original authority on fresh production of the documents.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No. 37/2009 dated 23/11/2009 passed by the Commissioner of Customs, Central Excise and Service Tax, Guntur ]
For approval and signature:
HON'BLE Mr. B.S.V. MURTHY, TECHNICAL MEMBER
1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes
Obulapuram Mining Company Pvt. Ltd. #123, Veeranna Gowda Colony, Club Road, Bellary Appellant(s) Versus Commissioner of Central Excise, Customs & Service Tax, Tirupathi 9/86-A, Behind West Church Compound, Amaravathi Nagar, M.R. Palli 517 502 Andhra Pradesh Respondent(s)
Appearance:
Mr. B.G. Chidananda, Advocate #85/86, Nisarga 4th Cross, Bhuvaneshwarinagar, H.A. Farm Post, Hebbal, Bangalore 560 024 For the Appellant
Mr. Mohd Yusuf, AR For the Respondent
Date of Hearing: 02/03/2015 Date of Decision: 02/03/2015 CORAM:
HON'BLE Mr. B.S.V. MURTHY, TECHNICAL MEMBER
Final Order No. 20462 / 2015
Per: B.S.V. MURTHY
Appellant filed a refund claim for Rs. 1,39,86,567/- (Rupees One Crore Thirty Nine Lakhs Eighty Six Thousand Five Hundred and Sixty Seven only) for the quarter ending 31.03.2008 under Notification No. 41/2007-ST which provided for refund of service tax paid on various input services specified therein subject to fulfillment of certain conditions. Out of the total refund claim, an amount of Rs. 24,97,829/- (Rupees Twenty Four Lakhs Ninety Seven Thousand Eight Hundred and Twenty Nine only) has been disallowed and the appellant is before me aggrieved by this decision.
2. Heard both the sides.
3. An amount of Rs. 17,82,505/- (Rupees Seventeen Lakhs Eighty Two Thousand Five Hundred and Five only) has been rejected on the ground that claim has been made on the basis of service tax paid on debit note and debit note is not a document which is specified in the relevant Rule. The learned counsel relies upon the decision in the case of Pharmalab Process Equipments Pvt. Ltd. Vs. CCE, Ahmedabad [2009-TIOL-2215-CESTAT-AHM.] to support his submission that when the debit note contains all the details required as per the Cenvat Credit Rules, credit cannot be denied. In that case the matter was remanded to the original authority to verify the documents and examine whether the document contains all the relevant details and extend the benefit. The learned counsel requests that the same decision should be followed. Learned AR has no objection.
4. An amount of Rs. 2,66,162/- (Rupees Two Lakhs Sixty Six Thousand One Hundred and Sixty Two only) has been rejected on the ground that the services received by the appellant is survey fees whereas Technical Testing and Analysis Service is covered by the notification. The learned counsel submits that the matter may be remanded to examine whether the service provider has classified the services provided by him under any one of the services specified in the Notification or not. He also submits that he would be producing a relevant decision wherein a view has been taken that what is required to be seen is how the service provider has classified the services and not which service the assessee has received for extending the benefit of Notification No. 41/2007. Therefore this issue also has to be remanded by keeping it open.
5. An amount of Rs. 4,49,162/- (Rupees Four Lakhs Forty Nine Thousand One Hundred and Sixty Two only) has been denied on the ground that no document was produced. It is the submission of the learned counsel that they had produced the document. Nevertheless he submits that appellant would produce the document again before the original authority if the matter is remanded.
6. In view of the above submissions and observations thereon, the matter is remanded to the original authority for fresh consideration in the light of observations made hereinabove.
(Order pronounced in open court)
(B.S.V. MURTHY) TECHNICAL MEMBER
iss
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