Case Law Details
Vedanta Aluminium Ltd Vs Commissioner of CGST & Excise (CESTAT Kolkata)
In the case of Vedanta Aluminium Ltd Vs Commissioner of CGST & Excise, the appellant Vedanta Aluminium Ltd, located in an SEZ, appealed against a decision by the Commissioner (Appeals) rejecting their refund claim of service tax paid on certain services. CESTAT Kolkata found that the rejection lacked a stated reason, termed a ‘cryptic order’, and subsequently set aside the order directing re-adjudication.
Vedanta Aluminium Ltd, the appellant, had filed a refund claim for service tax paid on specific services. The adjudicating authority had sanctioned the refund claim for 13 out of 18 invoices but rejected the remaining five, deeming them either fake or improper.
On appeal, the Commissioner (Appeals) rejected the refund claim without providing explicit reasoning in his order. This cryptic order led to the appeal at CESTAT Kolkata. During the appeal, the appellant’s counsel highlighted the absence of clear findings in the Commissioner (Appeals)’s order that could justify the refund claim rejection.
In response, CESTAT Kolkata set aside the impugned order, deeming it non-speaking and ordered re-adjudication of the matter. The matter has been remanded back to the Commissioner (Appeals) for a detailed order on merit, expected within three months from the date of this order.
FULL TEXT OF THE CESTAT KOLKATA ORDER
The appellant is in appeal against the impugned order when the ld. Commissioner (Appeals) has rejected their refund claim by passing a cryptic order.
2. The facts of the case are that the appellant is located in SEZ and availed certain specific services and filed refund claim of service tax paid on the said services before the adjudicating authority. Out of 18 Invoices, in case of 13 Invoices, the adjudicating authority sanctioned the refund claim and for remaining 5 Invoices, he held that that the said Invoices are either fake or are not proper. Therefore, refund claim is rejected.
3. The ld.Commissioner (Appeals) in its order has held as under :
“5.3 M/s VAL (SEZ Unit) have failed to submit the Original copies of invoices as evident from the Form A-2, Table-A (Column No.6&7) wherein it is prescribed in the Table – A as well as under Notification No. 40/2012-ST dated 20.06.2012 that the original copies of invoices/bill/challan should be vital document for claiming the exemption under the above notification. Even though the taxable services are approved by the Approval committee vide their letter No.1(43) ACM/2009 dated 06.08.2009 for carrying out authorized operation in the SEZ unit. The ‘Rent-a-Cab Service’ involved in this claim application has also been approved by the “Approval Committee” for the purpose of claiming exemption vide letter No. F. 2/126/2006-SEZ/2013-14/3825 dated 29.01.2014 of Falta Economic Zone, Kolkata. The Appellant have also furnished declaration in Form A-1 duly verified by the Special Officer of the SEZ for the purpose of claiming exemption. The Appellant have also submitted declaration to the effect that they have not taken Cenvat Credit of service tax paid on the specified services used for the authorized operations in their SEZ. Therefore, the Adjudicating Authority rightly allowed Rs.50,634/- on which he found correct and declined the exemption to appellant to the extent of Rs.30,866/-involved in the ‘Xerox’ copies and invoices issued other than the Appellant and duplicate invoice.
5.4. Further I find that the allegations made in the grounds of appeal by the Appellant that they have paid service tax on reverse charge in respect of ‘Rent-a-Cab service’, the challan is sufficient proof of payment for refund claim. As per Service Tax Law, the service tax liability on the aforementioned service is on the Appellant, the service provider cannot be compelled to disclose element of service on his invoice. Further, the original copy of invoice is required in case where the service tax paid to the service provider under forward charge basis not in reverse charge basis. The Appellant also stated that the service provider belongs to unorganized sector and their billing pattern is on the basis of mere common parlance. The service provider used to write the name of the Appellant as plant 2 instead of VAL(SEZ). The Appellant Company is known as Plant 2 in Jharsuguda. They have stated that SEZ Act provides for special provision which have overriding power on all indirect taxes and has been enacted for very special purposes. Therefore, rejection of some portion of the refund claim by the Ld. Assistant Commissioner is not tenable. The allegation made by the Appellant is acceptable because they have not followed the para 2 & 3 of the Notification No.40/2012-ST dated 20.06.2012.”
4. The ld. Counsel for the appellant has drawn the attention of the Bench at Para 5.4 of the Order of the ld. Commissioner (Appeals, wherein the ld. Commissioner (Appeals) has not given any findings, why the refund claim is not acceptable, merely saying that the allegations made by the appellants are acceptable, but uphold the order impugned. The impugned order is a cryptic order, not a speaking order.
5. Therefore, I set aside the impugned order and remand the matter to the ld. Commissioner (Appeals) to pass a detailed order on merit after hearing the appellant.
6. The appeal is disposed off with a direction to the ld. Commissioner (Appeals) that the matter should be decided within a period of three months from the date of receipt of this order.
(Dictated and pronounced in the open court)
