2018 (11) TMI 832 – CESTAT HYDERABAD – TMI – SEZ unit – refund claim – appellants could not produce all the documents necessary to substantiate their claims of refund.
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Held that:- It is not in dispute that the appellant has not able to fulfilled all the conditions for claiming the refund inasmuch as he has not provided the documentary evidence before the Original Authority as well as the First Appellate Authority to fully justify their refund claim and hence part of their refund claims were rejected – there is no merits in the grounds of appeal which seek to draw a distinction between the procedural requirements and substantial requirement of a notification.
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Considering the both sides of the arguments and that the appellant is an exporter claiming benefit of the exemption notifications (although they were careless in not producing the documents before the First Appellate Authority and Original Authority), this is a fit case to be remitted back to the Original Authority to
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to Dec 14 206/2016 – Refund 068 to 071- 17-18 7. ST/30147/2018 Oct 15 to Dec 15 205/2016 – Refund 068 to 071- 17-18 8. ST/30148/2018 Jan 15 to Mar 15 09/2016 – ST 062 to 064 – 17-18 9. ST/30149/2018 Apr 15 to Jun 15 10/2016 – ST 062 to 064 – 17-18 10. ST/30150/2018 Jul 15 to Sep 15 11/2016 – ST 062 to 064 – 17-18 All these appeals pertain to the same issue. The appellant is a SEZ unit and they have filed refund claims under various exemption notifications as above. 2. Refund applications were filed by the appellant. The officers verified the claims and found defects and issued defect memos asking them to rectify the defects. In response, the appellants submitted some documents. Still, it was found that the defects were not fully removed and therefore show cause notices were issued to the appellant asking them as to why the refund should not be denied refund for non fulfillment of the conditions. During adjudication, the appellant produced some documents based on which the refund claim
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e documents along with their appeal before this Bench. It is his submission that they have now been able to compile all the documents and bank statements to fully justify each of the refund claims. The details of the refund claims filed the amount sanctioned in the Orders-in-Original and Orders-in-Appeal and the amounts rejected and the reasons given in the grounds of appeals are below: S. No CESTAT Appeal No. Refund Claim Filed date Refund amount claimed Refund Period Order-In-Original No. 442/2016-Refund/ date Refund sanctioned by OIO in Rs. Refund rejected by OIO in Rs. Order-In- Appeal No. /date Refund disallowed in OIA in Rs. Reasons given by 1st Appellate/ Commr (Appeals) Grounds of Appeal 1 ST/31330/ 2017 Refund Claim filed on 29.12.2016 in Form A4 for refund u. Notf.12/2013-S.T. dt. 01.07.2003 1699152 01/2016 to 03/2016 442/2016- Refund, dt. 27.03.2017 1363970 335182 OIA-067-17-18, dt. 22.09.2017 335182 The requirement to produce relevant documents so as to cause verfication of
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which are consumed in SEZ under Notf.12/2013-ST dt. 01.07.2013 1236948 01/2015 to 03/2015 09/2016- S.T. 0 1236948 OIA-062-064-17- 18, dt. 22.09.2017 1236948 The impugned Notf. 12/2013-ST vide para 3 (III) (d) specifies that applicant for refund is required to submit the relevant invoices on the basis of which such refund has been claimed along with proof of payment of service tax paid on such services to service provider. Such requirment to produce invoices has not been satisfied by appellants even in appeal proceedings. This is a mandatory condition to be fulfilled vefore such tax can be refunded to appellants. Appellants also failed to prove payment of tax by them to Service provider. Therefore, Comm'r (Appeals) did not find any infirmity in the decision of the original authority. Procedural requirements and technical requirements are liable to be set aside and substantive provisions need to be complied with. Equal importance cannot be given for both substantive and procedural p
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d to the service provider. Thus there is complete failure on the part of the appellants to submit necessary and satisfactory documents to prove receipt of services. They also failed to prove payment of tax by them to service provider. Non compliance with statutory requirements which are mandatory and substantive cannot be brushed as aside as procedural infractions. Accordingly, I do not find any infirmity in the decision of the original authority. Refund is allowed by Comm'r (Appeals) on Consulting Engineering, Commercial Training, Man power recruitment and Event management Services for an amount of ₹ 6180/- in respect of OIO 208/2016, an amount of ₹ 95,299/- in respect of OIO 207/2016 and an amount of ₹ 24720/- in respect of OIO 206/2016. Regarding Non submission of input invoices they are in the process of collating the said invoices and will submit the same during personal hearing. With regard to Non-submission of bank statement evidencing payments to service p
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tains to Erection, Testing and Commissioning Service of Internal Electrical Works and cannot be excluded under Construction of Civil Work. (3) In respect of ₹ 3,30,872/- in the first instant appellant had not taken any credit. Appellant submitted that they claimed refund of service tax charged by M/s Tata Consultancy Services ltd, amounting to ₹ 1,21,450/- and With regard to Non-submission of Input Invoices they are in the process of collating the said Invoices and will submit the same during personal hearing. they would be submitting the relevant invoices at the time of personal hearing before Comm'r (Appeals). However, appellants have not produced the same. Therefore, Comm'r (Appeals) did not find any reason to interfere with this part of decision of original authority and rejected refund of ₹ 1,21,450/- 10 ST/30193/ 2018 Refund Claim filed on 30.06.2016 under Rule 5 of CCR, 2004 read with Notf.27/20 12-CE(NT) dt. 18.06.2012 1.7E+07 07/2015 to 09/2015 149/20
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ims and they were sanctioned refunds in terms of exemption notifications to the extent they could justify their claims. The exercise has been going on for one year and nine months. Hence the impugned orders and the orders of the Original Authority were correct and the appeal may be rejected. It is his further submission that the Hon ble Supreme Court s Constitution Bench in the case of M/s Dilip Kumar and Company Civil Appeal No. 3327/2007, dated 30.07.2018 has held that the provisions of beneficial/exemption notification should be interpreted strictly, and any benefit of doubt should go in favour of the Revenue and against the assessee. In view of this settled legal position, there is no case for the refund to be sanctioned by allowing the appeals of the appellant because admittedly, they were not able to justify their claims with supporting documents. Therefore, the appeals may be rejected and the impugned orders may be upheld. 5. I have considered the arguments on both sides. It is
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