Case Law Details
Cerner Healthcare Solutions Pvt Ltd Vs Commissioner of Central Tax (CESTAT Bangalore)
The adjudicating authority rejected the claim as time barred since said documents were submitted beyond one year.
The appellant is an SEZ unit engaged in export of services. It filed a refund claim for input services received by it for authorised operations in terms of Notification no.9/2009-ST. The refund claim was partially allowed. It filed appeal before commissioner (appeals). The appellate authority remanded the matter back with direction to produce certain documents in support of the claim. On remand, the adjudicating authority rejected the claim as time barred since said documents were submitted beyond one year. On appeal, this time, Commissioner (appeals) upheld such order. Hence, appeal.
Hon’ble CESTAT, Bengaluru set aside the orders and allowed the appeals. It held: (i) the adjucating authority did not seek any documents post remand from commissioner (appeals) and hence, claim could not be said to be time barred; (ii) the original claim was filed in time and it was, in fact, partially allowed and hence, submission of documents cannot be said to be time barred; (iii) the claim was not hit by section 11B(EC) of the Central Excise Act as held in several decisions of Tribunal; (iv) the appellant had submitted all documents directed by the appellate authority and hence; claim is allowable on merits; barring a few services which remain unchallenged by the appellant.
The matter was argued by Ld. counsel Bharat Raichandani along with Advocate Raaghul Piraanesh J R.
FULL TEXT OF THE CESTAT BANGALORE ORDER
The issue in the present appeals is regarding rejection of refund claim by the Adjudication Authority. Appellant had filed a refund claim of Rs. 10,36,076/- on 28.06.2013. After considering the claim in detail Adjudication Authority held that refund claim is submitted in time and out of Rs. 10,36,076/-, an amount of Rs. 76,137/- was allowed and rejected refund of Rs. 9,59,939/-. Aggrieved by said order, an appeal was filed before Commissioner (Appeals), Commissioner (Appeals) considered the issue and partially allowed the appeal and directed the appellant to submit invoice/document pertain to certain transaction. Thereafter, appellant had a made detailed submissions and also submitted the document as directed by the Commissioner (Appeals). However. In De-novo adjudication, the Adjudication Authority held that since appellant had not submitted the necessary documents as directed within one year, it is treated as a fresh refund claim and it is rejected on the ground that it is barred by limitation. Aggrieved by said order, an appeal was filed before the Commissioner (Appeals) and Commissioner (Appeals) also upheld the Order-In-Original issued by Adjudication Authority rejecting the refund claim. Aggrieved by said, appeal No ST/20660/2022 is filed. Similarly another refund application was filed for the period from March 2011 to September 2011 for an amount of Rs. 16,01,023/- and it was rejected vide Order-in-Original No. 98/2013 dated 31.01.2013, on the ground that they have failed to fulfil the conditions as per notification no. 17/2011 dated 01.03.2011. Aggrieved by said order, an appeal was filed before Commissioner (Appeals) and Commissioner (Appeals) as per Order-In-Appeal dated 06.09.2016 allowed the appeal and remanded the matter to Adjudication authority and directed the appellant to produce the document to support the claim. Thereafter, appellant produced the above said documents before the Adjudication Authority as evidence from the communication dated 10.06.2019. However, Adjudication Authority has taken the same view as taken in ibid matter and rejected the refund claim. Aggrieved by said order an appeal was filed before the Commissioner (Appeals) and Commissioner (Appeals) upheld the rejection of the refund claim. Aggrieved by said order appeal no. ST/20661/2022 is filed.
2. When the appeals and petition for change of cause title came up for hearing, learned AR have no objection in allowing the petition for change of cause title of the appellant and to hear the appeals also on merit. Considering the same, the petition for change of cause title is allowed. As regarding appeal on merit, learned counsel for the appellant submits that both the appeals were rejected prima facie on the ground that on remand, the appellant were directed to produce certain documents and considering the production of said documents as fresh refund claim Adjudication Authority and the first appellate authority as per impugned order rejected the claim on the ground that the claim is submitted beyond the period of limitation. Prima facie considering the defect cured by the appellant as directed by the Commissioner (Appeals) in remand cannot be considered as second refund claim to reject the claim as done by the Adjudication / Appellate Authorities.
3. As regarding the issue on merit learned Counsel draws my attention to the impugned orders and learned counsel submits that while submitting the refund application appellant had submitted large number of documents including the following;
Annexure 1 – Extracts of Input Credit Register
Annexure 2 – Copies of the input invoices raised on the Company
Annexure 3 – Copy of the approval received from SEZ
Annexure 4 – Copy of the declaration as per Notification No. 09/2009
Annexure 5 – Copy of the Service tax registration certificate
Annexure 6 – Copy of the approval for list of specified services
4. Thereafter, first appellate authority partially allowed the claim against Appeal No. ST/20660/2022 and Appeal allowed against present appeal no. ST/20661/2022. Both the appeals were remanded with a specific direction to produce certain documents and the appellant had produced the document including declaration from the company stating that no Cenvat credit was availed on the invoices pertains to this claim, copy of invoices basis which the claim for refund has been filed and copy of export invoices and the document evidencing payment made for service provider. Fact being so, the appellant complied with the entire requirement and the refund claim ought to have been allowed by the Adjudication Authority atleast on de-novo adjudication. However, Adjudication Authority has rejected the claim on the ground that there is a delay in submitting the document after remand by considering the same as submission of fresh refund application.
5. Learned Counsel for the appellant submits that if at all there was non-compliance of the order of Commissioner (Appeals), Adjudication Authority ought to have taken the issue suo moto for the Adjudication as per the directions of the first Appellate authority. Thus, Adjudication Authority has disregarded the order of the first appellate authority and caused great hardship to the appellant. Learned Counsel also relied on large number of decisions including the following and submits that present refund is not hit by Section 11(b)(ec) of the CE Act.
1. M/s. Gil Shared Services Private Ltd. Vs. Assistant Commissioner of GST & Central Excise reported in 2019 (8) TMI 825 – Madras High Court
2. Commissioner of Customs Vs. M/s. Spic Ltd. reported in 2014 (12) TMI 1121 – Madras High Court
3. BASF India Ltd. Vs. Commissioner of Central Excise & Central Tax, reported in 2021 (3) TMI 788-CESTAT Bangalore
5. M/s. Jindal Steel & Power Ltd. Vs. CCE, Raipur reported in 2017 (3) TMI 566 – CESTAT New Delhi
6. Learned Authorised Representative (AR) for the Revenue reiterated the finding in the impugned order and submits that refund claim is partially allowed the Adjudication Authority and there is no irregularity or illegality in the impugned orders.
7. Heard both sides and perused the records. It is an admitted fact that appellant had submitted refund claim within due date initially and it was partially allowed by the Adjudication Authority on merit. Aggrieved by the said order appeal was filed before the Commissioner (Appeal) and after considering the appeal, Commissioner (Appeals) had issued directions to produce the document and also remanded the matter to Adjudication Authority for verification of the document. There is no communication made by the Adjudication Authority on remand regarding de-novo adjudication. Appellant had submitted the document before issuing order in de-novo adjudication proceedings as evidence from the communication relied by the appellant. Fact being so, considering it has a second refund application and rejecting the same as time barred is prima facie unsustainable. As regarding claims on merit, the first appellate authority while considering the Refund claim against Appeal No. ST/20660/2022 has upheld the rejection of refund of Rs. 28,116/-pertains to professional fees claimed under the category telecommunications services and Rs. 39,337/- pertains to transport of passengers and Rs. 9,838/- pertains to sound recording services. Since appellant has not filed any appeal challenging the said order, said finding attained finality. Accordingly appellant is eligible for refund of balance amount only on production of the document. Considering the same, Appeal No. ST/20660/2022 is partially allowed. As regarding Appeal No. ST/20661/2022, the first appellate authority on first round of appeal had allowed the appeal and remanded the matter before the de-novo authority and considering the entire facts and circumstances of the case, Appeal No. ST/20661/2022 is allowed as prayed.
8. Accordingly, Appeal No. ST/20660/2022 is partially allowed and appeal No. ST/20661/2022 is allowed as prayed with consequential relief if any accordance with law.
(order dictated and pronounced in open court)
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