M/s. Janoschka Graphic Services India Pvt. Ltd. Versus CCGST – III, Mumbai
Service Tax
2018 (10) TMI 1279 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 28-9-2018
Appeal No. ST/87664/2018 – A/87455/2018
Service Tax
Dr. Suvendu Kumar Pati, Member (Judicial)
Ms. Pritha Sarkar, CA for the appellant
Shri O.M. Shivadikar, AC (AR) for the respondent
ORDER
Denial of cenvat credit of Rs. 2,64,298/- pertaining to two quarters ending on December 2013 and March 2014 by the appellant EOU is under challenge in this appeal.
2. Factual backdrop of the case is that appellant is an 100% EOU service provider who commenced its operation in October 2013 and for the above referred two quarters cenvat credit amounting to Rs. 2,64,298/- was denied to the appellant vide order-in-original no. Refund/RKS/52/2015 dated 16.06.2015 that ultimately attained confirmity in the Order-in-Appeal. The Grounds of rejection are different in both orders. Order-in-originals indicates that app
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t for were produced before the original adjudicating authority along with bank statement in compliance to the deficiency memo but copy of service agreement with foreign client could not be produced by then as not available with them, but the adjudicating authority vide his order-in-original dated 16.06.2015 gave his finding that constitution certificate of the appellant and the foreign company, who was the recipient of the service, were not produced before him for which he rejected the claim of appellant, besides other grounds referred in order-in- original, though requirement of production of Constitution certificate was not found mentioned in the deficiency note. He further submitted that all those documents were produced before the Commissioner (Appeals), who rejected the appeal on narrow technical ground that reversal of cenvat credit for the corresponding period could not be ascertained from the ST-3 returns. In submitting Chartered Accountant report on bifurcation of cenvat credi
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ing the claim, and the same was not done by the appellant for which the appeal filed by them is liable to be rejected.
5. Heard at length from both sides and gone through the case records. Before giving any finding on the penalty it is pertinent to reproduce the finding of the Commissioner (Appeals) made at para 6 & 6.1 of his order which reads as follows:-
“6. I have carefully gone through the facts of the case on record, grounds of appeal in the Appeal memorandum and submissions made by the appellant. I find that the entire claim was rejected by the adjudicating authority on the ground of non-submission of the documents. I also find that during the personal hearing before the adjudicating authority, the appellant had declared that there is no agreement between the foreign client and the assessee, as both are group companies and all the service orders are received online. During the personal hearing before the adjudicating authority, the appellant failed to produce the evidences reg
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g to which “service” means any activity carried out by a person for another for consideration, and includes a declared service. Therefore, I find that the appellant entered in to agreement with M/s Janoschka Kippenhelm GmbH, Germany for Design Service which is to be treated as export of service under Rule 6A of the Service Tax Rules, 1994 as the service receiver is located outside the India. The department vide OIO no. Refund/RKS/146/2015 dated 26.08.2015 has also held that the appellant is exporting Design Service other than Interior decoration and Fashion designing.”
6. From his finding referred above, it is apparently clear that –
i) Service orders were received by the appellant company online from the foreign client;
ii) Copy of agreement between the receiver and provider of service and order-in-original in the subsequent period were filed by the appellant before him
iii) Service of the appellant is covered under 65(b)(4) of the Finance Act, 1994;
iv) Service of designing for
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s own.
7. It is pertinent to mention here that agreement for sale need not be necessarily a written one in a pre-defined format. It can be through oral agreement or written request made in letter correspondence. It can also be offer and acceptance communicated through emails. Therefore, rejection of refund claim on the ground that agreement copy has not been submitted is improper. Further Commissioner (Appeals) being empowered by Rule 35C of the Central Excise Act, which is equally applicable to service tax matter, is also empowered to make further enquiry and form an independent opinion and is not necessarily required to confine his views only on the order-in-original [MIL India Ltd. vs. CCE 2007 (260) ELT 188 (SC)]. He had apparently exercised that power and even accepted the copy of the agreement executed between the appellant and the overseas service recipient. Further, going by the order-in-original dated 25.08.2015 and 13.01.2015, in which refund claim amount has been referred i
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