Sitel Operating Corporation India Ltd vs Commissioner Of Service Tax ...

[Arising out of Order-In-Appeal No 60-2010 dated 11/02/2010 passed by CCE(Appeals), Bangalore-II ]

For approval and signature:

HON'BLE SHRI 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?

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 of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

SITEL OPERATING CORPORATION INDIA LTD #18, BANASWADI MAIN ROAD, PULIKESHINAGAR P.O. BANGALORE Appellant(s)

Versus

Commissioner of Service Tax BANGALORE-SERVICE TAX NULL 1ST TO 5TH FLOOR, TTMC BUILDING,above BMTC BUS STAND,DOMLUR BANGALORE, - 560071 KARNATAKA Respondent(s)

Appearance:

Shri Akbar Basha, Advocate For the Appellant

Shri R. Gurunathan, Addl. Commissioner(AR) For the Respondent

Date of Hearing: 09/01/2015

Date of Decision: 09/01/2015

CORAM:

HON'BLE Shri B.S.V.MURTHY, TECHNICAL MEMBER

Final Order No. 20077 / 2015

Per : B.S.V. MURTHY

The refund claim filed by the appellant has been rejected only on the ground that the declaration filed by them as per the provisions of Notification No.12/2005 did not tally with the amounts claimed by them as refund. Notification No.12/2005 in paragraph 3.1 and 3.2 provides as under:-

3.1.

Filing of declaration.- The provider of taxable service to be exported shall, prior to date of export of taxable service, file a declaration with the jurisdictional Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as the case may be, describing the taxable service intended to be exported with,-

(a) description, quantity, value, rate of duty and the amount of duty payable on inputs actually required to be used in providing taxable service to be exported;

(b) description, value and the amount of service tax and cess payable on input services actually required to be used in providing taxable service to be exported.

3.2 Verification of declaration.- The Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall verify the correctness of the declaration filed prior to such export of taxable service, if necessary, by calling for any relevant information or samples of inputs and if after such verification, the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise is satisfied that there is no likelihood of evasion of duty, or as the case may be, service tax and cess, he may accept the declaration.

2. In this case, there is no dispute that the declaration has been filed and has been accepted. However the information that is not available, that could not be provided is that what was the difference between the declaration and the refund claim and how much was the difference and whether there was any consideration as to whether the claim of the appellant was otherwise correct. It was the submission of the learned counsel that refund claim has to be allowed on verification and declaration is only an estimate. However, the notification does not exactly use these words. Therefore the submission that it is only an estimate and has to be treated as an estimate will require more detailed consideration. Therefore I would not like to give any conclusion on this issue. The learned counsel relied upon certain decisions wherein delayed declaration have been held to be acceptable on the ground that it is a procedural requirement. In my opinion, these decisions require consideration and even if there was a difference between the declaration and the amount actually claimed and the amount as per the declaration, if it was less, could have been sanctioned. Even this has not been done. Therefore in my opinion, the lower authorities should consider the decisions cited by the learned counsel before him, the claim regarding the declaration being an estimate and the feasibility of sanctioning the admissible amount as per the declaration etc. I make it clear that while I remand the matter to the original adjudicating authority, the opinion expressed is not exactly be binding on the original adjudicating authority. He is requested to examine the issue afresh after giving reasonable opportunity to the appellants to present their case. Appeal is remanded.

(Operative part of this order pronounced in the court on conclusion of the hearing)

B.S.V.MURTHY TECHNICAL MEMBER

Raja..

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