2018 (10) TMI 1279 – CESTAT MUMBAI – TMI – 100% EOU – Refund Claim – rejection on the ground that appellant failed to submit required documents to establish that the services were to be treated as export of service – Held that:- The 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.
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Going by the order-in-original dated 25.08.2015 and 13.01.2015, in which refund claim amount has been referred in tabular form, the disputed amount of refund claim was ₹ 2,86,171/- and ₹ 4,69,426/- respectively. Going by the ST-3 copy submitted, the total amount outstanding to the credit of the appellant was ₹ 10,19,895/- which indicates that after deducting the claim amount adjudicated upon in those t
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ng 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 ₹ 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 appellant failed to submit required documents to establish that the services were to be treated as export of service while Order-in- Appeal indicates that from the ST-3 returns submitted by the appellant, the exact amount of credit to be availed for those two quarters could not be ascertained. 3. In the appeal memo and during the course of hearing of the appeal, the ld. Counsel for the appellant submitted that for the same nature of services two consecu
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efore 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 credit amount on quarterly basis, the ld. Counsel for the appellant submitted that the two subsequent orders-in-original submitted to the Commissioner (Appeals) in this case clearly reveal the total amount of cenvat credit held to be admissible and the balance amount pertains to the period of dispute which could have been easily assessed by the Commissioner in holding his finding in favour of the appellant, for which he prays for setting aside the order of
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ppeal 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 regarding debit of the cenvat credit for refund amount claimed. In the appeal memorandum, the appellant had not submitted any grounds of appeal and only stated that sufficient opportunity was not granted to them. I don t agree with the contention of the appellant as appellant themselves had attended the personal hearing before the adjudicating authority. After the personal hearing before me, appellant had submitted copy of the agreement and few order-in-
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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 German based company located outside India is to be treated as export service under Rule 6A of the Service Tax Rules, 1994; and lastly, v) The department vide order no. Refund/RKS/146/2014 dated 26.01.2015 has also held that the appellant was exporting design service other than interior decoration and fashion designing. This being the observation of the Commissioner (Appeals) rejection of the claim of the appellant only on the ground that it was not clearly asce
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, 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 in tabular form, the disputed amount of refund claim was ₹ 2,86,171/- and ₹ 4,69,426/- respectively. Going by the ST-3 copy submitted, the total amount outstanding to the credit of the appellant was ₹ 10,19,895/- which indicates that after deducting the claim amount adjudicated upon in those two order-in-originals, the balance amount remaining is ₹ 2,64,298/-, which is also found reflected in the order-in-original dated 16.06.2015 in tabular
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