Case Law Details
Centroid Polymer Technologies Vs Commissioner of Central Tax & Central Excise (CESTAT Bangalore)
Appellant submits that the appellate authority has rejected their appeals and denied refund on the ground that required documents in terms of Section 11B of Central Excise Act, 1944 as made applicable by Section 83 of Finance Act, 1994 have not been submitted. He submits that documents like invoices evidencing payment of service tax have been submitted before the appellate authority; however, the appellate authority has rejected the same stating that the requisite documents were to be submitted at the adjudicating level not at the appellate level.
Issue is no longer res integra and the appellants have a strong case in their favour on merits as well as procedure. I find that this Bench has gone into both the issues in the case of Comfort Night Linen Products and anr. Vs. CCT&CE, Calicut [Final Order No.20652-20653/2021 dt. 03/08/2021] and held that the refund is due to the appellants.
As appellants have produced sufficient documents to prove the payment of service tax, CESTAT do not find any justification for rejection of the refund claims and hence, set aside the impugned orders by allowing the appeals of the appellant.
FULL TEXT OF THE CESTAT BANGALORE ORDER
All the appellants as above have filed these appeals against the impugned Orders-in-Appeal passed by the Commissioner(Appeals), Cochin.
2. The appellants have taken industrial land on long term lease from Kerala Industrial Infrastructure Development Corporation (KINFRA, for short) and paid upfront amount on long term lease along with service tax to KINFRA who in turn paid service tax to the Government. As the period and issue involved in all the appeals are identical, the same are taken for disposal together.
3. Learned consultant for the appellants submits that as per the amendment carried out vide Finance Act, 2017, no service tax is payable on one time upfront amount (premium, salami, cost, price, development charge or by whatever name called) in respect of taxable service provided or agreed to be provided by a State Government industrial development corporation or undertaking to industrial units by way of grant of long term lease of 30 years or more of industrial plots, shall be levied or collected during the period commencing from the 1st June, 2007 and ending with the 21st September, 2016 and sub-section (2) of Section 104 provided for refund of service tax paid during this period. Learned consultant also submits that the issue is squarely covered in the appellants’ favour as per the orders passed by this Bench in the cases of Metrolite Roofing Pvt. Ltd. and others Vs. CCT&CE, Calicut [Final Order No.20160-20166/2022 dt. 01/04/2022] and Comfort Night Linen Products and anr. Vs. CCT&CE, Calicut [Final Order No.20652-20653/2021 dt. 03/08/2021]. Learned consultant further submits that the appellate authority has rejected their appeals and denied refund on the ground that required documents in terms of Section 11B of Central Excise Act, 1944 as made applicable by Section 83 of Finance Act, 1994 have not been submitted. He submits that documents like invoices evidencing payment of service tax have been submitted before the appellate authority; however, the appellate authority has rejected the same stating that the requisite documents were to be submitted at the adjudicating level not at the appellate level. He submits that the issue of non-submission of invoices was also dealt by this Bench in the case of Comfort Night Linen Products (supra).
4. Learned AR for the Department reiterates the findings of the Orders-in-Appeal.
5. Heard both sides and perused records of the case.
6. I find that the issue is no longer res integra and the appellants have a strong case in their favour on merits as well as procedure. I find that this Bench has gone into both the issues in the case of Comfort Night Linen Products (supra) and held that the refund is due to the appellants. I find that this Bench has observed as under:-
“6. After considering the submissions of both the parties and perusal of the material on record, I find that the appellants filed refund claims which arose as a consequence of introduction of Section 104 of the Finance Act w.e.f. 31.03.2017. Further, I find that Notification No.41/2016 dated 22.09.2016 has exempted taxable service provided by the State Government Industrial Development Corporation/Undertakings to industrial units by way of granting long term lease on industrial plot from so much of service tax leviable thereon under Section 66B of the said Act, as is leviable on the onetime upfront amount payable for such lease. Vide Section 104 (1), exemption was provided from said services for the period from 01.06.2007 to 21.09.2016 and it was provided that the refund claim ST/20413-20414/2020 5 should be filed within a period of six months from the date from which Finance Act, 2017 is promulgated and come into force. Further, I find that in the present case, the appellants filed the refund claims within time and the only ground for which the refunds were rejected by the Original Authority and upheld by the Appellate Authority is that the appellants did not produce sufficient documents in the form of invoices/bills showing that they have paid the service tax to KINFRA. During the pendency of the appeals, the appellants filed various invoices/bills issued by KINFRA showing the payment of service tax by the appellant for which the refund claims have been filed by the appellant. Further, I find that KINFRA has also issued a certificate dated 02.02.2021 certifying that they have not availed any CENVAT credit on the service tax paid by the appellants. Further, I find that these bills/invoices issued by KINFRA clearly show the payment of service tax by the appellant to KINFRA and KINFRA in turn has paid the same to the Government. Though these invoices/bills were not produced before the Original Authority but various Challans issued by KINFRA were produced along with worksheets showing the payment of service tax to KINFRA by the appellants.
7. In view of the facts that now the appellants have produced sufficient documents to prove the payment of service tax, I do not find any justification for rejection of the refund claims and hence, I set aside the impugned orders by allowing the appeals of the appellant.”
7. In view of the above, I find that the issue is squarely covered in favour of the appellants and the impugned orders are not sustainable. Accordingly, I set aside the impugned orders and allow all the appeals as follows:-
i. Appeal No.ST/20689/2021 – Centroid Polymer Technologies.
ii. Appeal No.ST/20690/2021 – PCON India Extrusions.
iii. Appeal No.ST/20691/2021 – Rapha Diagnostics Private Limited.
iv. Appeal No.ST/20692/2021 – VAP Industries.
v. Appeal No.ST/20693/2021 – Sariga Apparels Private Limited.
vi. Appeal No.ST/20694/2021 – Shri Vincent Mani
vii. Appeal No.ST/20695/2021 – Rapha Diagnostics Private Limited.
viii. Appeal No.ST/20696/2021 – Revron Industrial Gases
ix. Appeal No.ST/20697/2021 – Mother Agro Industries
x. Appeal No.ST/20698/2021 – Prince Touch Food Products
xi. Appeal No.ST/20041/2022 – Hemco Equipments
(Dictated and pronounced in open court on 12/04/2022)
