Case Law Details
M/s. Inspirage Software Consulting Pvt. Ltd. Vs Commissioner GST & CCE (CESTAT Chennai)
The adjudicating authority has rejected the appellant’s claim of it having made the refund claim on 27.06.2017. The first appellate authority has also concluded the date of filing of the refund claim was 12.07.2017 only as against which the appellant contends that there was an attempt to file the refund claim on 27.06.2017 but, the said application was accepted only on 12.07.2017 after being advised by the Assistant Commissioner to wait for some time on account of Revenue Offices being re-located on account of migration to GST. Ld. Consultant thus contends that the delay was not in the date of filing but, rather, is due to the delay in receipt of its application on account of Department’s reorganization.
I find force in the appellant’s contention that the delay is there only on account of the receipt of appellant’s application for refund and this fact is duly supported by the Legacy Cell letter dated 18.07.2017 in C.No. IV/16/02/2017-Misc.Leg.RF/ RB-II issued by the Office of the Commissioner Goods and Service Tax, Chennai-South Commissionerate, wherein the date of claim of the appellant for refund has been acknowledged as 27.06.2017.
I do not find any finding by the lower authorities as to the non-compliance with any of the provisions of Rule 5 of CCR, 2004 for rejecting appellant’s claim. This, coupled with date of acknowledgement by the Legacy Cell, makes it very clear that the appellant’s claim for refund was in order and is even so, in terms of Notifications referred to in the Order-in-Original. For the above reasons, I am of the considered opinion that the rejection of the appellant’s claim by the Commissioner (Appeals) vide impugned order is not sustainable and hence, the same is set aside.
FULL TEXT OF THE CESTAT JUDGEMENT
Heard Shri G. Thangaraj, Ld. Consultant for the assessee and Ld. DR, Shri M. Jagan Babu, AC for the Revenue.
2. Ld. Consultant appearing for the assessee contended that there are two issues involved viz., i) denial of cenvat credit on “House Keeping Services”, and ii) refund of unutilized input service credit under Rule 5 of CCR read with Notification No. 27/2012-CE (NT) dated 18.06.2012. He further submitted that the last ST-3 return for the period January, 2017 to March, 2017 was filed by the appellant only on 12.07.2017 since, from July 2017 the GST having been introduced the requirement of filing ST-3 returns was done away with and hence no reversal could be made by the appellant at the time of filing application for refund. He further pointed out that even though Section 140 (1) of CGST Act, 2017 provided an option to carry forward the closing balance as of the last return relating to the period ending with the day preceding the appointed day. He further relied on the decision of the Hon’ble Madras High Court in the case of Wipro Ltd. Vs. CCE, Pondicherry – 2018 (10) GSTL 172 (Mad.), Integra software Services Pvt. Ltd. Vs. CCE, Pondicherry – 2017 (48) STR 137 (Tri.-Chen.) and also the decision of the Hon’ble High Court of Gujarat in the case of Cosmonaut Chemicals Vs. UOI – 2009 (233) ELT 46 (Guj.) in his support.
3. Per contra, Ld. DR supported the findings of the lower authorities, also pointed out that the date of application is 12.07.2017, which has been duly considered and refund has been worked out as on 12.07.2017. He further pointed out that as per the Notification No. 27/2012-CE dated 18.06.2012, the adjudicating authority has duly considered the balance of Cenvat credit available as on the last day of the quarter that available on the day of filing the refund claim which is on 12.07.2017 and therefore refund worked out is in accordance with law.
4.1 I have considered the rival contentions, perused the impugned orders and have also gone through various decisions relied on during hearing.
4.2 With regard to eligibility of credit in respect of House Keeping Services, I find merit in the contentions of the Ld. Consultant and his reliance on the decision of the Jurisdictional High Court in the case of Wipro Ltd. (supra). Following the judicial precedence therefore, the first issue succeeds.
4.3 The other issue is the date of filing of refund claim. The adjudicating authority has rejected the appellant’s claim of it having made the refund claim on 27.06.2017. The first appellate authority has also concluded the date of filing of the refund claim was 12.07.2017 only as against which the appellant contends that there was an attempt to file the refund claim on 27.06.2017 but, the said application was accepted only on 12.07.2017 after being advised by the Assistant Commissioner to wait for some time on account of Revenue Offices being re-located on account of migration to GST. Ld. Consultant thus contends that the delay was not in the date of filing but, rather, is due to the delay in receipt of its application on account of Department’s reorganization.
4.4. I find force in the appellant’s contention that the delay is there only on account of the receipt of appellant’s application for refund and this fact is duly supported by the Legacy Cell letter dated 18.07.2017 in C.No. IV/16/02/2017-Misc.Leg.RF/ RB-II issued by the Office of the Commissioner Goods and Service Tax, Chennai-South Commissionerate, wherein the date of claim of the appellant for refund has been acknowledged as 27.06.2017.
4.5 I do not find any finding by the lower authorities as to the non-compliance with any of the provisions of Rule 5 of CCR, 2004 for rejecting appellant’s claim. This, coupled with date of acknowledgement by the Legacy Cell, makes it very clear that the appellant’s claim for refund was in order and is even so, in terms of Notifications referred to in the Order-in-Original. For the above reasons, I am of the considered opinion that the rejection of the appellant’s claim by the Commissioner (Appeals) vide impugned order is not sustainable and hence, the same is set aside.
5. The Appeal is allowed with consequential benefits, if any, as per law.
(Order pronounced in the open Court on 27.02.2019)
