ST - All judgments quoted by appellant were taken into consideration but it was not considered necessary to discuss every judgment for sake of brevity and only judgments passed by HC were discussed and order was based upon same - no mistake apparent from record: CESTAT
By TIOL News Service
MUMBAI, OCT 3, 2014 : THE appellant had filed a refund claim on 23.12.2009 under Rule 5 of the CCR, 2004 read with Notification No.5/2006-CE(NT) for an amount of Rs.14,53,763/- for the period October, 2008 to December, 2008.
The adjudicating authority held -
+ Part of the refund claim was time barred.
+ Claim of Rs.4,96,794/- was sanctioned.
+ CENVAT Credit of Rs.1,58,371/- was disallowed on the ground that the same had no nexus with the output service.
Against the order portion not in favour, the appellant filed an appeal but did not succeed.
So, they filed an appeal before the CESTAT and the Single Member Bench after adverting to the clause 6 of the Appendix of the notification 5/2006-CE(NT) and the provisions of section 11B of the CEA, 1944 observed that although the situation relating to export of services is not specifically covered by any of the sub-clauses of Clause (B) of Explanation, sub-clause (a) is the clause which is nearest to the situation relevant for the export of services and, therefore, a combined and harmonious reading of Rule 5, Section 11B and Notification 5/06-CE(NT) would indicate that the period of one year is to be computed from the date of export of the service.
While arriving at this conclusion, the Bench adverted to the ‘latest' decision on the subject matter [of GTN Engineering (I) Ltd 2012-TIOL-369-HC-MAD-CX] and refused to go by another single Member decision in Eaton Industries Private Ltd. - 2011-TIOL-166-CESTAT-MUM where it is held that the relevant date for filing of refund of credit in respect of Export services is the date when the payment of service (exported) is received and not date of providing the service.
The CENVAT credit eligibility was decided by allowing the same in the light of the Bombay High Court decision in Ultratech Cement Ltd 2010-TIOL-745-HC-MUM-ST and in the matter of transport charges, to the extent the appellant had incurred the same, it was allowed.
We reported this order as 2014-TIOL-1035-CESTAT-MUM.
Against this order, the appellant filed a ROM application on the ground that following case laws were not taken into consideration by the Bench -
++ Vodafone Cellular Ltd. 2014-TIOL-319-CESTAT-MUM.
++ Deepak Spinners Ltd. 2014-TIOL-63-CESTAT-DEL
The AR submitted that paragraph 7 of the order passed indicated that the judgements quoted by the appellant were taken into account by the Bench and, therefore, the ROM application should be dismissed.
The Bench noted -
"4. I have considered the submissions while I agree with the learned AR that all the judgments quoted by the advocate for the appellant were taken into consideration. It was not considered necessary to discuss each and every judgment for sake of brevity and only the judgments passed by the Hon'ble High Courts were discussed and the order was based upon the same."
Nonetheless the Bench adverted to the Vodafone & Deepak Spinners cases and inter alia observed -
++ The present case is not relating to rebate of service tax under Notification 11/2005- but refund under Rule 5 of the Cenvat Credit Rules read with Notification 5/2006-CE(NT) dated 14.3.2006. In fact the said Notification 5/2006 itself prescribes time limit as prescribed under Section 11B of the Central Excise Act. In view of the said position, the facts of Vodafone Cellular case are entirely different from the present case. Moreover, in the said judgment, this Tribunal has held that a time limit of one year would be applicable from the date of payment of service tax while in the present case, time limit has been specified in the Notification itself. The only issue is the relevant date. In the present case, the appellant is not required to pay any duty and, therefore, the concept of payment of duty becomes irrelevant. It is in these circumstances that the date of raising the invoice is considered as the relevant date. The other possibility would be to consider the date of taking the credit. However, that will not further the interest of appellant but would be adverse to the interest of the appellant.
++ As far as the judgment of this Tribunal in the case of Deepak Spinners Ltd. is concerned, the same is based upon the judgment of the Gujarat High Court in the case of CCE, Surat-I vs. Swagat Synthetics 2008-TIOL-666-HC-AHM-CX. This judgement has been extensively discussed in the judgment of the Madras High Court in the case of CCE, Coimbatore vs. GTN Engineering (I) Ltd. 2012-TIOL-369-HC-MAD-CX which has been extensively quoted in the order. This order is based upon High Court's order, which is higher body than Tribunal.
Holding that there is no mistake apparent from the record, the ROM application was dismissed.
(See 2014-TIOL-1905-CESTAT-MUM)
