Apex Co Vantage India Pvt. Ltd. Versus CCT, Rangareddy- GST
Service Tax
2018 (6) TMI 814 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 14-6-2018
ST/30212/2018, ST/30213/2018, ST/30214/2018 – Final Order No. A/30635-30637/2018
Service Tax
Hon'ble Mr. P. Venkata Subba Rao, Member ( Technical )
Shri Rama Mohan, Chartered Accountant for the Appellant
Shri Guna Ranjan, Superintendent ( AR ) for the Respondent
ORDER
[ Order Per : P. Venkata Subba Rao ]
These appeals are filed by the appellant against Orders- in-Appeal passed by the Learned Commissioner (Appeals) upholding the Orders-in-Original.
2. Heard both sides and perused the records.
3. The brief facts of the case are that the appellant is an exporter engaged in the export of Information Technology services. They also rendered services to their Indian clients. But the bulk of their turnover is export of services and hence they accumulated CENVAT credit. They had filed an application under Rule 5 of
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30212/2018
30213/2018
30214/2018
2.
Refund for the Quarter
April – June 2015
July – Sept 2015
Jan – March 2015
3.
Date of application
30/03/2016
29/06/2016
25/01/2016
4.
Refund Amount
7,32,287/-
10,32,532/-
5,39,822/-
5.
Date of Entry in Books
30/06/2016
30/09/2016
31/03/2016
6.
Date of Order by Deputy Commissioner
23/12/2016
28/12/2016
23/12/2016
7.
Due date of filing ST-3 for the period Oct 15 to March 16
25/04/2016
8.
Date of filing ST-3 for the period Oct 15 to March 16
22/04/2016
9.
Due date of filing revised ST-3 for the period Oct 15 to March 16
21/07/2016
10.
Due date of filing ST-3 for the period April 16 to Sept 16
25/10/2016
11.
Date of filing ST-3 for the period April 16 to Sept 16
24/10/2016
12.
Due date of filing revised ST-3 for the period April 16 to Sept 16
23/01/2017
13.
Date of filing revised ST-3 for t
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NVAT credit. It is his submission that due to ignorance, the appellant had not claimed refund of service tax during the previous periods but did so for the period from April, 2015 onwards. They had filed refund claims but had not debited the amount in time i.e., before or at the time of making the claim. This mistake was rectified by them by subsequently debiting the amount. It an honest mistake because of which they should not be deprived of their substantive benefit of refund. It is his further submission the appellant does not stand to gain anything by not debiting as they always had surplus credit in their books of accounts because of their exports. Considering these facts, the Learned Commissioner (Appeals) should have taken a more holistic view of the situation and allowed them to refund which he did not. His submission is that the Tribunal should take a larger view of the situation and appreciate that the appellant has not gained anything by these technical mistakes and should n
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71) taxmann.com 358 (Mumbai – CESTAT)]
6. The Learned Departmental Representative on the other hand, vehemently opposed the appeal and said that the statutory requirement under Rule 5 of the CENVAT Credit Rules read with procedure laid down in Notification No. 05/2006-CE (NT) cannot be modified by the Tribunal. It must be followed. He further argued that debiting the amount in the CENVAT credit before filing the refund claim is a substantive requirement and is not a mere procedure.
7. I have considered the both arguments and perused the records. The Constitution of India has demarcated the roles of Legislature, Executive and Judiciary. Legislation is the exclusive domain of the Legislature. To provide flexibility in the law to deal with changing needs and conditions, the parent Act itself delegates the powers of delegated legislation to the Executive i.e., the Government which is accountable to the Parliament. This delegated legislation, in the form of Rules, Regulations, Notificatio
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nor the quasi-judicial authorities including the Tribunals (which are creations of the law) have the power to modify, amend, insert, delete, stretch or restrict the scope of the Act, Rules, Regulations or the Notifications. Their role is confined to interpreting the laws and applying them to the case in hand. The Hon'ble Apex Court in the case of UOI vs Kirloskar Pneumatics Company [1996 (84) ELT 401 (SC)] not only clarified this position but further held that even when exercising the powers under Article 226/227, the High Courts cannot direct the officers to act contrary to the law. Para 10 of this judgment reads as follows:
“10. According to these sub-sections, a claim for refund or an order of refund can be made only in accordance with the provisions of Section 27 which inter alia includes the period of limitation mentioned therein. Mr. Hidayatullah submitted that the period of limitation prescribed by Section 27 does not apply either to a suit filed by the importer or to a writ
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cted to ignore or act contrary to Section 27, whether before or after amendment. May be the High Court or a Civil Court is not bound by the said provisions but the authorities under the Act are. Nor can there be any question of the High Court clothing the authorities with its power under Article 226 or the power of a civil court. No such delegation or conferment can ever be conceived. We are, therefore, of the opinion that the direction contained in clause (3) of the impugned order is unsustainable in law. When we expressed this view during the hearing Mr. Hidayatullah requested that in such a case the matter be remitted to the High Court and the High Court be left free to dispose of the writ petition according to law.”
The above scheme of things under the constitution as well as the above judgment of the Supreme Court that the creatures of law cannot act contrary to the law lays down the basic framework for me to decide the issue at hand. The question to be decided is whether the Ord
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sible;
(B) “Net CENVAT credit” means total CENVAT credit availed on inputs and input services by the manufacturer or the output service provider reduced by the amount reversed in terms of sub-rule (5C) of rule 3, during the relevant period;
(C) “Export turnover of goods” means the value of final products and intermediate products cleared during the relevant period and exported without payment of Central Excise duty under bond or letter of undertaking;
(D) “Export turnover of services” means the value of the export service calculated in the following manner, namely:-
Export turnover of services = payments received during the relevant period for export services + export services whose provision has been completed for which payment had been received in advance in any period prior to the relevant period – advances received for export services for which the provision of service has not been completed during the relevant period;
(E) “Total turnover” means sum total of the value of
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uch duty; or claims rebate of service tax under the Export of Services Rules, 2005 in respect of such tax.
Explanation 1.- For the purposes of this rule,-
(1) “export service” means a service which is provided as per the provisions of Export of Services Rules, 2005, whether the payment is received or not;
(2) “relevant period” means the period for which the claim is filed.
Explanation 2.- For the purposes of this rule, the value of services, shall be determined in the same manner as the value for the purposes of sub-rule (3) and (3A) of rule 6 is determined.]
Notification No. 5/2006-CE
In exercise of the powers conferred by rule 5 of the CENVAT Credit Rules, 2004 (hereinafter referred to as the “said rules”), and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue), No 5/2006 – Central Excise (N.T), dated the 14th March, 2006, published in Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide n
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every year.
(c) the value of goods cleared for export during the quarter shall be the sum total of all the goods cleared by the exporter for exports during the quarter as per the monthly or quarterly return filed by the claimant.
(d) the total value of goods cleared during the quarter shall be the sum total of value of all goods cleared by the claimant during the quarter as per the monthly or quarterly return filed by the claimant.
(e) in respect of the services, for the purpose of computation of total turnover, the value of export services shall be determined in accordance with clause (D) of sub-rule (1) of rule 5 of the said rules.
(f) for the value of all services other than export during the quarter, the time of provision of services shall be determined as per the provisions of the Point of Taxation Rules, 2011.
(g) the amount of refund claimed shall not be more than the amount lying in balance at the end of quarter for which refund claim is being made or at the time of
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n and enclosures relating to the quarter for which refund is being claimed shall be filed by the claimant, before the expiry of the period specified in section 11B of the Central Excise Act, 1944 (1 of 1944).
(c) The application for the refund should be signed by-
(i) the individual or the proprietor in the case of proprietary firm or karta in case of Hindu Undivided Family as the case may be;
(ii) any partner in case of a partnership firm;
(iii) a person authorized by the Board of Directors in case of a limited company;
(iv) in other cases, a person authorized to sign the refund application by the entity.
(d) The applicant shall file the refund claim along with the copies of bank realization certificate in respect of the services exported.
(e) The refund claim shall be accompanied by a certificate in Annexure A-I, duly signed by the auditor (statutory or any other) certifying the correctness of refund claimed in respect of export of services.
(f) The Assistant Commissi
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