M\/s. Esskay Design & Structures Pvt. Ltd. Versus Commissioner of GST & Central Excise
Service Tax
2018 (7) TMI 621 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 9-7-2018
Appeal Nos. ST\/42235 & 42236\/2017 – Final Order Nos. 41956-41957 \/ 2018
Service Tax
Hon'ble Ms. Sulekha Beevi C.S., Member (Judicial)
\nShri M. Kannan, Advocate for the Appellant
\nShri R. Subramaniam, AC (AR) for the Respondent
\nORDER
\nBrief facts are that the appellants are engaged in providing consulting engineering service. They filed refund claim under Rule 5 of CENVAT Credit Rules, 2004 for the unutilized credit. Show cause notice was issued proposing to reject the refund claim on the following four grounds:-
\n The assessee has not filed declaration with Deputy \/ Assistant Commissioner before export
\n Accumulated CENVAT credit pertains to period prior to registration
\n The assessee had filed ST-3 return belatedly on 19.2.2016 wherein under col. B1.8, the export of services was declared as <\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n aration and therefore the proposal for rejection of the refund claim on this ground is not correct. With regard to the second ground that the service recipient and assessee are the same entity, it was clarified by the adjudicating authority that both these are different and distinct entities. In regard to the ground for rejection that the appellant has not mentioned the quantum of export in their ST-3 returns for April 2014 to September 2014, it was held by the adjudicating authority that this was merely an error in filing the return and it was condoned. Thus, the adjudicating authority after analyzing the above three grounds dropped those grounds for rejecting the refund claim. However, the department has not filed any appeal against this before the Commissioner (Appeal) but the Commissioner (Appeals) has taken up all these grounds and has erroneously held against the appellant even though there is no appeal filed by the department. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n grounds and held against the appellant which is not proper. The department having not filed any appeal against the Order-in-Original, I find force in the contention of the ld. counsel. Thus, the rejection of refund as held by the Commissioner (Appeals) in the impugned order on the three grounds is incorrect and requires to be set aside, for the reason that the department has not appealed against the order passed by the adjudicating authority. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" M\/s. Esskay Design & Structures Pvt. Ltd. Versus Commissioner of GST & Central ExciseService Tax2018 (7) TMI 621 – CESTAT CHENNAI – TMICESTAT CHENNAI – ATDated:- 9-7-2018Appeal Nos. ST\/42235 & 42236\/2017 – Final Order Nos. 41956-41957 \/ 2018Service TaxHon'ble Ms. Sulekha Beevi C.S., Member (Judicial) Shri M. Kannan, Advocate for the Appellant Shri R. Subramaniam, … Continue reading “M\/s. Esskay Design & Structures Pvt. Ltd. Versus Commissioner of GST & Central Excise”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-12560","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/12560","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=12560"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/12560\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=12560"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=12560"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=12560"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n3.2 With regard to the ground for rejection that th<\/p>\n
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\n6.1 The issue that remains for consideration is whether the appellant is eligible for refund for the credit availed before obtaining registration of the premises. The said issue stands covered by the judgment relied by the ld. counsel for the appellant. Following the same, I am of the view that the rejection of refund claim cannot sustain and requires to be set aside.
\n7. From the above discussion, I hold that the impugned order which rejects the refund claim filed by the appellant requires to be set aside, which I hereby do. The impugned order <\/p>\n
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