Whether not filing of cross objection by the assessee as well as Chartered Accountant’s Certificate can be the ground to reject the assessee’s claim of refund?

PJ/CASE LAW/21-22/3653

Case: Nupur Viniyog Private Limited Vs Commissioner of CGST & CX (CESTAT Kolkata)

Citation: Appeal Number: Service Tax Appeal No.75701 of 2018

Issue: Whether not filing of cross objection by the assessee as well as Chartered Accountant’s Certificate can be the ground to reject the assessee’s claim of refund?

Brief Facts: the facts of the case are the learned Deputy Commissioner, Service Tax Park Street Division, Service Tax-II allowed the exemption by way of sanctioning an amount of Rs.1,34,782/- as refund of Service Tax paid on the taxable specified services for export of goods made under Bills of Export claimed by the by M/s. Nupur Viniyog Private Limited (Appellant) assessee. Subsequently, the Department filed appeal before the learned Commissioner(Appeals) on the ground that certain shipping bills involving amount of Rs.80,853/-do not fulfill the conditions as prescribed in Clause (i) of Paragraph 3 of the Notification No.41/2012-ST dated 29.06.2012. The department has also raised the issue that the certificate of the Chartered Accountant as prescribed in sub-clauses (A) & (B) has not been submitted by the claimant. The learned Commissioner (Appeals) allowed the appeal filed by the Department and modified the Order-in-Original (which sanctioned refund) on the ground that no Cross Objection was filed by the respondent assessee against the Department’s appeal and further on the ground that the Chartered Accountant’s Certificate was not filed before him. Hence the present appeal before the Tribunal.

Appellant contention : Shri N.K. Agarwal, learned Chartered Accountant, appearing on behalf of the appellant assessee submitted that a claim for refund of Service Tax paid on specified taxable services used for export of goods under Bill of Exports amounting to Rs.1,43,138/- under Notification No.41/2012-ST dated 29.06.2012 in Form-A-1 was filed on 22.05.2015. Subsequently, claim amounting to Rs.6,129/- was withdrawn with a request to process the remaining claim of Rs.1,37,009/-. It is his submission that the learned Adjudicating authority, after detailed verification of the documents as submitted by the appellant assessee, found that barring the credit involved in few input service invoices amounting to Rs.2,227/-, the refund claim of Rs.1,34,782/- fulfilled the conditions/requirements as prescribed in the Notification No.41/2012-ST (supra) and the said amount was found to be admissible for refund. Accordingly, the appellant assessee was granted the refund. He further submitted that they had also filed Cross Objection before the learned Commissioner of Central Excise (Appeals) on 27.05.2016 against the appeal filed by the Department. He also submitted that in the course of hearing on 22.11.2017 before the learned Commissioner (Appeals), the grounds taken in the Cross Objection were reiterated and the fact of filing the original copy of the Chartered Accountant’s Certificate dated 20.05.2015 filed along with the refund claim was asserted. He vehemently argued that the Memorandum of Cross Objection having been filed on 22.05.2016 is a fact on record, but the learned Commissioner (Appeals) chose to deny even the existence of any such Cross Objection filed by the appellant assessee, which is totally unjustified and uncalled for.

Reasoning of Judgement:Hearing took placethrough video conferencing and it was decided that the learned Adjudication officer has gone through all the documents and has discussed the conditions of the Notification or eligibility of the refund claim and has made a point-wise observation. He has finally sanctioned the refund claim. Learned Commissioner (Appeals) has allowed the appeal before him mainly on the ground that the respondent assessee did not file any Cross Objection and further Chartered Accountant’s Certificate was not available in the records before him. The learned Commissioner (Appeals) could have called for the copy of the Cross Objection filed by the assessee as well as copy of the Chartered Accountant’s Certificate. It was held that mere this ground cannot be the ground to reject the assessee’s claim of refund. It can be seen that there is no dispute as to the fact that the goods were exported by the appellant assessee. Once it is not in dispute that the services are specified for refund purpose, and since Service Tax was actually paid on specified services pertaining to export activity, refund must be granted to the exporter.

DECISION: Held that once it has been established that export had taken place and Service Tax was paid on export by the Appellant in terms of the relevant notification, refund must be granted. It is settled principle that substantive benefit should not be denied to the Appellant even if technical conditions are not fulfilled. Sole intention of the Government to bring out the rebate schemes is to promote the Indian exporters to enjoy a level playing field and to compete with the exporters of other countries in the global market; if the refund claims are rejected on such flimsy grounds, it defeats the very purpose of rebate schemes and traps the exporters under unnecessary litigations. In view of the above discussions, the impugned order is set aside and the order passed by the learned Adjudicating authority is upheld (OIO).

Prepared by Sandhya Daiya.

Comments

PJ/CASE LAW/21-22/3653

Post a Comment

Query