Commissioner of CGST, Mumbai East Versus Western Union Services India Pvt. Ltd.
Service Tax
2019 (3) TMI 418 – CESTAT MUMBAI – 2019 (369) E.L.T. 844 (Tri. – Mumbai)
CESTAT MUMBAI – AT
Dated:- 31-1-2019
APPEAL No. ST/86744/2018 – A/85245/2019
Service Tax
Dr. D.M. Misra, Member (Judicial)
Shri M. Suresh, Joint Commissioner (AR), for appellant
Mihir Deshmukh, Advocate, for respondent
ORDER
Heard both sides.
2. This is an appeal filed by the Revenue against order-in-appeal No. PK/353/ME/2017 dated 20.12.2017 passed by Commissioner of Central Excise & GST (Appeals), Mumbai-II.
3. Briefly stated the facts of the case are that the respondent had filed two quarterly refund claims for the period April 2012 to June 2012 and July 2012 to September 2012 totaling to Rs. 40,54,016/- in terms of Notification No.27/2012-CE(NT) dated 18.6.2012. The learned adjudicating authority rejected a portion of the refund claim amounting to Rs. 33,97,770/-, inter alia, on the ground
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a particular quarter has been taken into consideration in calculating the refund amount. It is his contention that the learned Commissioner (Appeals) without appreciating the said change in the law, allowed the refund claim, which was rejected by the adjudicating authority.
5. Learned Advocate, Shri Mihir Deshmukh, for the respondent, submits that even though by mistake, the invoices which were issued before amendment and its turnover was considered while allowing refund claim during the quarters October 2011 to March 2012, and now also included in the present refund claims as the export proceeds were received during the subsequent period, however, the net effect of the refund allowed by the learned Commissioner (Appeals) would not undergo any change. It is his contention that while reducing the export turnover of the services at numerator, the same amount should also be reduced from total turnover in the denominator in calculating the refund amount.
6. I find that the dispute centre
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er the old provisions, if not claimed, could be claimed within one year from the relevant date even after 1.4.2012 but not twice for the same invoices, once while raising the invoices and second time while receiving the proceeds of the invoice. Both proceedings operate in different spheres which would be clear if the proviso to Rule 5(2) of Cenvat Credit Rules, 2004 is read along with the amended definition of 'export turnover services'. However, I find force in the contention of the learned Advocate for the respondent that once the 'export turnover of services' is reduced automatically, the total turnover gets reduced. This fact needs to be ascertained by applying the formula in the proper perspective.
7. In the result, the impugned order is set aside and the appeal is allowed by way of remand to the adjudicating authority to recalculate the refund amount based on the formula prescribed under the amended Rule 5 of Cenvat Credit Rules, 2004 taking into consideration the correct export
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