Case Law Details
eShakti.com Private Limited Vs Commissioner of G.S.T. and Central Excise (CESTAT Chennai)
Introduction: In a significant development, the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) Chennai has directed the re-adjudication of a dispute involving eShakti.com Private Limited’s eligibility for refund/rebate under Notification No. 41/2012-S.T. The case revolves around the manufacture and export of ready-made garments by eShakti.com, which claimed a refund of Service Tax paid on input services under Rule 5 of the CENVAT Credit Rules, 2004.
Detailed Analysis:
1. Background: eShakti.com Private Limited, engaged in the manufacturing and export of ready-made garments, utilized various input services during its operations. Believing that they were eligible for a refund of the Service Tax paid on these input services under Rule 5 of the CENVAT Credit Rules, 2004, and under Notification No. 41/2012-S.T., eShakti.com filed multiple refund claims.
2. Initial Rejection: These refund claims were initially rejected through Orders-in-Original dated 28.05.2015, primarily on the grounds of non-jurisdiction and non-submission of required documents. eShakti.com appealed this decision, which led to a series of legal proceedings.
3. CESTAT’s Involvement: CESTAT Chennai, upon hearing both parties, issued final orders, including Final Order No. 41863 of 2016 dated 06.10.2016 and Final Order Nos. 42243 to 42245 of 2016 dated 15.11.2016. The CESTAT felt it was appropriate to set aside the impugned orders and remand the matter for de novo adjudication, particularly concerning the first four refund claims.
4. Re-Examination by Original Authority: Following the CESTAT’s remand orders, the original authority re-examined the appellant’s claims and, in Orders-in-Original No. 01/2020 to 05/2020, all dated 16.11.2020, granted partial relief for the refund.
5. Revenue’s Appeal: The Revenue filed an appeal against the grant of refund. They argued that the original authority had exceeded the scope of the CESTAT/Commissioner (Appeals) orders by considering the appellant’s claims under Notification No. 41/2012-S.T., among other grounds.
6. First Appellate Authority’s Decision: The first appellate authority allowed the Revenue’s appeal in its Order-in-Appeal Nos. 57-61/2021(CTA-I)(D) dated 16.04.2021. This decision prompted eShakti.com to file the present appeals.
7. eShakti.com’s Case: eShakti.com contends that they fulfilled all conditions of Notification No. 41/2012 for the sanctioning of the refund/rebate. They argued that the specified services were indeed used for exporting goods, and export proceeds were received in convertible foreign exchange. Additionally, they claimed that CENVAT Credit was not availed but was only recorded in their books for quantifying export incentives.
8. Legal Precedents: eShakti.com cites legal precedents to support its position, asserting that procedural lapses or errors in forms should not lead to the denial of export incentives.
9. Revenue’s Counterarguments: The Revenue argues that the original authority exceeded the CESTAT’s remand scope by entertaining the appellant’s new ground for refund under Notification No. 41/2012., which was time-barred. They also contend that the grant of rebate under this notification was incorrect due to alleged violations of the conditions.
Conclusion: The CESTAT Chennai’s decision to direct re-adjudication in the eShakti.com case underscores the complexity of issues related to refund/rebate eligibility under Notification No. 41/2012. The case serves as a reminder of the importance of adhering to procedural requirements while also highlighting the need for clarity and precision in legal proceedings. As the matter returns to the jurisdictional Commissionerate for fresh consideration, both parties will have the opportunity to present their arguments, and a final determination will be made regarding the eligibility of eShakti.com for the refund/rebate under the specified notification. This case showcases the intricacies of tax disputes and the legal processes involved in seeking relief.
FULL TEXT OF THE CESTAT CHENNAI ORDER
Brief facts as could be gathered from the records placed before us is that the appellant is engaged in the manufacture and export of ready-made garments. During the course of manufacture and export, they had utilised a number of input services and since they were eligible for refund/rebate of the Service Tax paid on input services under Rule 5 of the CENVAT Credit rules, 2004, and that believing that they were eligible for the refund in terms of both Notification No. 27/2012-C.E. dated 18.06.2012 and Notification No. 41/2012, they filed five different claims for refund of the above input services. It appears that they relied upon only Notification No. 27/2012-C.E. dated 18.06.2012 under Rule 5, instead of the Notification under which they could have filed rebate claim.
1.2. It appears that the said claims for refund came to be rejected vide Orders-in-Original dated 28.05.2015, apparently on the ground of non-jurisdiction, non-submission of documents, etc. It appears that the appellant preferred an appeal before the first appellate authority who also confirmed the rejection of their claims, against which it appears that they filed appeals before this Bench. Upon hearing both the parties, this bench by its Final Order No. 41863 of 2016 dated 06.10.2016 and Final Order Nos. 42243 to 42245 of 2016 dated 15.11.2016, felt it proper to set aside the impugned orders and thereby remanding the matters insofar as first four claims were concerned, for de novo adjudication. Insofar as the fifth claim for refund is concerned, it appears that following remand orders (supra) of this Bench, the first appellate authority himself chose to remand the appeal pending before him for fresh adjudication.
2.1. Upon remand, the original authority, considered the claim of appellant afresh and thereafter vide Orders-in-Original No. 01/2020 to 05/2020 all dated 16.11.2020 granted a partial relief of refund. Feeling aggrieved by the grant of refund by the original authority, it appears that the Revenue preferred an appeal, before the first appellate authority on the grounds that:
a. The adjudicating authority had gone beyond the scope of the orders of the CESTAT / Commissioner (Appeals), where no specific direction was given to consider the claims under Notification No. 41/2012;
b. Since the alternate ground for refund under Notification No. 41/2012was raised afresh only during the de novo proceedings, it is not a consequential refund and therefore time-barred; and
c. Even the sanction under Notification No. 41/2012 is not legally correct inasmuch as the exporter had taken CENVAT Credit in violation of condition (d) of the said Notification.
2.2. It appears that the appellant also filed its counter, thereby supporting the grant of refund. But however, it appears that the first appellate authority vide impugned Order-in-Appeal Nos. 57-61/2021(CTA-I)(D) dated 16.04.2021 allowed the Revenue’s appeal. It is against this order that the present appeals have been filed by the appellant.
3.1. It is the case of the appellant that it has fulfilled all the conditions of Notification No. 41/2012 (supra) for sanctioning of the refund/rebate as claimed by it. It is their case that: –
- The specified services had been used for the export of goods during the relevant period.
- The export proceeds had been received in convertible foreign exchange.
- CENVAT Credit was never availed by the appellant as it was only shown in their books of account with a view to quantify the export for the purposes of export incentives.
- Subsequent claims have been sanctioned under the very same grounds.
- They have not availed any double benefit as to the export.
- Claims for refund have been filed before the jurisdictional Service Tax authorities who were competent to sanction their claims under Notification No. 41/2012 (supra).
3.2. It is their claim that export incentives should not be denied merely on procedural lapses or any error in the forms submitted, for which they rely on the following orders: –
i. Amity Thermosets Pvt. Ltd. v. Commissioner of C.Ex., Vapi [2011 (22) S.T.R. 157 (Tri. – Ahmd.)]
ii. Ford India Pvt. Ltd. v. Assistant Commissioner of C.Ex., Chennai [2011 (272) E.L.T. 353 (Mad.)]
3.3 They would also contend that mere availing of CENVAT Credit or keeping it in the books of account without, however, utilizing or reversing the same before filing of the refund claims, would not amount to taking of CENVAT Credit under the CENVAT Credit Rules, 2004, for which they have relied on the following decisions: –
i. Chandrapur Magnet Wires (P) Ltd. v. Collector of C.Ex., Nagpur [1996 (81) E.L.T. 3 (S.C.)]
ii. Tree House Hotel Club & Spa v. Commissioner of C.Ex., Jaipur-I [2017 (4) G.S.T.L. 39 (Tri. – Del.)]
iii. Automative Design & Engrg. Solutions (P) Ltd. v. Commissioner of Cus., C.Ex. & S.T., Hyderabad [2017 (5) G.S.T.L. 93 (Tri. – Hyd.)]
iv. Sundaram Industries Ltd. v. Commissioner of C.Ex., Madurai-II [2014 (301) E.L.T. 87 (Tri. – Chennai)]
3.4. They also contended that it is a well settled position of law that mentioning a wrong Notification in the claim and later on substituting with correct Notification would not render the claim ineligible, in support of which they have relied on the following: –
i. R. S. Infraprojects (Pvt.) Ltd. v. Commissioner of C.Ex., Ghaziabad [2017 (358) E.L.T. 1188 (Tri. – All.)]
ii. Monarch Catalyst Pvt. Ltd. v. Commissioner of C.Ex., Thane-I [2015 (37) S.T.R. 1021 (Tri. – Mum.)]
iii. Simla Agencies v. Collector of Customs [1993 (67) E.L.T. 599 (Tri. – Del.)]
iv. Nav Bharat Corporation, New Delhi v. Collector of Customs, Bombay [1983 (13) E.L.T. 1106 (C.E.G.A.T.)]
v. Food Corporation of India Ltd. v. Collector of Customs, Bombay [1987 (30) E.L.T. 963 (Tri. – Del.)]
4.1 On the other hand, the Ld. Departmental Representative contended that this Bench had remanded all the claims back to the file of original authority for the limited purpose of giving opportunity to the appellant to produce all supporting evidence and then decide the issue after causing verification; the adjudicating authority therefore went beyond the scope of remand and entertained the appellant’s request for refund under different Notification and therefore the said refund order was not as per law.
4.2. Further, it is contended that the first appellate authority has observed that it was unambiguously clear from the order of this Bench that the Tribunal had examined the appeals only on the ground of non-submission of evidence by the appellant in their support and thus gave the remand order for passing a de novo order, with a limited purpose of giving an opportunity; hence, clearly there was no discussion on merit as to whether the claim of the appellant filed under Rule 5 of the CENVAT Credit Rules, 2004 could be considered to have been filed under Notification No. 41/2012
4.3. He would also refer to the finding of this Bench to contend that the Bench had made it amply clear that the remand had been made for the limited purpose of granting opportunity of hearing to the appellant for pleading both facts and law as well as evidence.
5. We have perused the impugned order and we have gone through the submissions made during the course of arguments.
6. The first appellate authority has, in a nutshell, held that the original authority should not have entertained the claims of the appellant under Notification No. 41/2012 (supra) which was made for the first time and hence the same was clearly time-barred. He has further held that though he agreed that the export incentives granted to the exporter should not be denied merely on procedural lapses, but however, the same would not bestow upon the exporters to file claims under inappropriate notifications, wrong jurisdiction and without adhering to or complying with the substantial conditions prescribed under the notifications.
7. After hearing the rival contentions, we find that this is a case where the original authority has decided the matter afresh based on the directions given by a co-ordinate Bench of the Tribunal in Final Order No. 41863 of 2016 dated 06.10.2016 and Final Order Nos. 42243 to 42245 of 2016 dated 15.11.2016, directing him to examine such evidence and pleadings, if any, both on facts and law as well as apply proper law and pass a reasonable and speaking order. The Tribunal being the final fact-finding authority, the direction to apply proper law would entail the original authority examining the refund claim in the light of the proper Notification which is brought to his notice by the appellant during the remand proceedings.
8.1 On perusal of the impugned common Order-in-Appeal, we find that the main grievance of the Department before the first appellate authority appears to be: –
(i) The impugned orders were de novo orders arising out of the CESTAT Final Orders (supra).
(ii) Originally, the refund claims were filed under Rule 5 of the CENVAT Credit Rules, 2004 read with Notification No. 27/2012 , which came to be rejected, which were appealed against.
(iii) In the second appeal before the Tribunal, their prayer was allowed with no specific direction or positive observation in favour of the assessee and ordered for a decision on merit.
(iv) The original authority, by allowing the new ground for refund under Notification No. 41/2012-S.T. dated 29.06.2012, has gone beyond the mandate of the Final Orders of the CESTAT (supra).
(v) Any new ground becomes a new claim, which is governed by period of limitation, which was not considered by the original authority.
(vi) The assessee’s eligibility vis-à-vis claim under Notification No. 41/2012 was made even before the Commissioner(A), who had rejected the same.
(vii) The rebate granted under Notification No. 41/2012 was incorrect since the assessee had availed CENVAT Credit even though they had reversed it, which was in clear contravention of the very same Notification.
8.2 We find from the above that prima facie, the Revenue is questioning the eligibility of the appellant-assessee for refund / rebate under Notification No. 41/2012 ibid. Further, as per the Revenue’s grounds of appeal, as reproduced in the impugned order at paragraph 4.2 (vii), the assessee had in fact made a claim under Notification No. 41/2012 which was rejected in the said order, which later on came to be appealed against and set aside by this Bench vide Final Orders (supra).
9. Taking a holistic view of the overall facts and circumstances, we deem it appropriate to set aside the impugned order and remit the matters back to the file of the Commissioner (Appeals) and the Commissioner (Appeals) shall pass a fresh order on the eligibility of the appellant in terms of Notification No. 41/2012 alone and thereafter, pass a speaking order in accordance with law.
10. Hence, we set aside the common impugned Order-in-Appeal and allow the appeals, by way of remand. All the issues / contentions are left open. Admittedly, the impugned order has been passed on the appeals filed by the Revenue and therefore, the first appellate authority shall afford reasonable opportunities to both the appellant and respondent before him, before passing a de novo We find that the matter pertains to the vintage 2015 and hence, the first appellate authority shall pass the de novo speaking order as early as possible, within a period of ninety days from the date of receipt of this order by the jurisdictional Commissionerate.
(Order pronounced in the open court on 12.09.2023)
