Texport Clothing Industries vs Commissioner Of Central Excise ...
- CitationAppeal No. 13-2010
Ratio decidendi
The rule this decision rests on
Where a refund claim for one period is returned for deficiencies and the claimant then files a fresh claim covering a period that overlaps the returned claim, the later claim cannot be treated as a resubmission of the returned claim unless the returned claim is itself re-filed for its own period, with the deficiencies cured and any portion not sought to be refunded segregated; absent that, the two claims are separate claims, and a claim for the earlier period is barred by limitation if not filed within time. Where CENVAT credit is claimed for refund and part of the credit was taken before the service tax on the relevant service had been paid, the denial of the entire refund claim on that ground is not correct; the portion of the credit taken after payment of service tax must be considered on its own and allowed if otherwise admissible. Whether the refund for the balance of the credit is admissible depends on verification of facts (when the credit was taken, when the tax was paid, and when the refund claim was filed), and that verification is left to the original authority. Outward courier/clearing and forwarding service in respect of exports from a 100% EOU, where the place of removal is treated as the port, is not necessarily inadmissible merely because the service relates to outward transportation, and the denial on that ground requires reconsideration by the original authority in light of the place-of-removal position. Audit service relating to the finance of an organisation has a sufficient nexus with the business so that credit on it cannot be denied on the ground of lack of nexus.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No. 13-2010 dated 15/01/2010 passed by Commissioner of Customs (Appeals), BANGALORE]
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? No 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? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes
Texport Clothing Industries 154, A/b, 3rd Cross, 5th Main, Yeshwanthpur Industries Suburb Bangalore 560022 Appellant(s)
Versus
Commissioner of Central Excise ,Customs and Service Tax, POST BOX NO 5400...CR BUILDINGS, BANGALORE, - 560001 KARNATAKA Respondent(s)
Appearance:
Mr. Akbar Basha, C.A.
HIRAGANGE & ASSOCIATES #1010, 1st floor(Above Corp.Bank) 26th Main, 4th T Block, Jayanagar, Bangalore Bangalore - 560041 Karnataka For the Appellant Mr. N. Jagadish, A.R. For the Respondent
Date of Hearing: 06/03/2015
Date of Decision: 06/03/2015
CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER
Final Order No. 20551-20552 / 2015
Per : B.S.V.MURTHY
Both the appeals involve a common issue namely refund of CENVAT credit accumulated and claimed under Rule 5 of CENVAT Credit Rules 2004. Appeal No. C/775/2010
2. This appeal relates to refund claim filed for the period from December 2006 to March 2007.
3. The claim for the month of December 2006 has been rejected on the ground of limitation. It was submitted that appellant had submitted refund claim from October 2006 to December 2006 and this was returned with a letter indicating deficiencies. However, appellants filed a refund claim for the period from December 2006 to March 2007 and the request is to treat the claim for December 2006 as the one resubmitted after making good the deficiencies in the claim filed for the period from October 2006 to December 2006. In my opinion, this claim cannot be accepted. If a refund claim for the period from October 2006 to December 2006 was returned pointing out certain deficiencies, the appellant should have resubmitted the claim for the same period and segregated the claim for January to March 2007 and submitted it separately. If they do not want to claim refund for October and November 2006, the refund claim would have been filed only for December 2006. Unless, I am able to take a view that the claim which was returned for the period from October 2006 to December 2006 was resubmitted in the eyes of law, it may not be possible to uphold the stand taken by the appellant that the part of the refund claim submitted has to be treated as resubmission of the earlier claim. The claims for October to December 2006 and December 2006 to March 2007 have to be treated as separate claims and in my opinion this has been correctly followed. Therefore this ground cannot be sustained.
4. Entire amount of refund claim amounting to Rs. 94,176/- has been rejected on the ground that appellant had filed the claim before making the payment. It was submitted that payment was made subsequently. The learned counsel relied upon J.K. Sugar Ltd. Vs CCE Meerut [2011(270)E.L.T.225 (Tri-Del)]. I would leave it to the original authority to consider the issue since demand required detailed discussion as to when the credit was taken; when the payment was made; when the refund claim was filed; which are basically verification of facts in detail. Since in any case, the appeals are proposed to be remanded to the original authority, it will be appropriate to leave it to the original authority. However, the denial of the entire refund claim on the ground that a portion of it was taken before payment of service tax was made is not correct. It is the appellants claim that claim for Rs. 52,775/- could not have been denied since this claim was made in respect of the amount taken as CENVAT credit after service tax was paid. This submission, I feel is in accordance with law and therefore the original authority should consider this issue favourably after verifying that the facts are correct.
5. An amount of Rs. 29,863/- has been denied on the ground that the C&F service has been received in respect of outward transportation. The learned counsel submits that appellant is a 100% EOU and there are decisions taking a view that in case of exports, the place of removal is the port. Therefore this credit is admissible and therefore refund is also admissible.
6. An amount of Rs. 8,568/- has been denied on the ground that there is no nexus in respect of audit services on which credit has been taken. Audit service relates to finance of an organization, amongst others and therefore this credit could not have been denied.
Appeal No. 776/2010 7. This appeal relates to the claim for refund from April 2007 to September 2007. In this case also entire amount of credit of Rs. 3,84,175/- has been denied on the ground that a portion of the CENVAT credit was taken before payment of service tax was made. This issue has already been dealt with earlier.
8. An amount of Rs. 1,31,144/- has been denied on the ground that outward C&F service is not admissible which has also been dealt with.
9. In view of the above discussion, matter is remanded to original adjudicating authority who shall proceed to decide the claims keeping in view the observations made hereinabove. Needless to say the appellant shall be given reasonable opportunity to present their case before a final order is passed.
(Order pronounced in open court)
B.S.V.MURTHY TECHNICAL MEMBER Pnr...
2
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