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M/S. Zentech Off-Shore Engineering Pvt. Ltd. Appellant v/s Commissioner of GST & CE, Chennai South


Company & Directors' Information:- A M ENGINEERING PRIVATE LIMITED [Amalgamated] CIN = U65910MH1981PTC187856

Company & Directors' Information:- D ENGINEERING PRIVATE LIMITED [Active] CIN = U29269TZ1932PTC000046

Company & Directors' Information:- CE-N (INDIA) PRIVATE LIMITED [Strike Off] CIN = U72900PN2012PTC145470

Company & Directors' Information:- S H ENGINEERING PRIVATE LIMITED [Active] CIN = U70101WB1999PTC088930

Company & Directors' Information:- GST PRIVATE LIMITED [Strike Off] CIN = U27104MH2002PTC136410

Company & Directors' Information:- SHORE TO SHORE INDIA PVT LTD [Strike Off] CIN = U51909DL1997PTC084729

Company & Directors' Information:- A C ENGINEERING PRIVATE LIMITED [Strike Off] CIN = U29253DL2011PTC222515

Company & Directors' Information:- IN ENGINEERING PRIVATE LIMITED [Active] CIN = U74210DL2011PTC212284

Company & Directors' Information:- THE ENGINEERING CORPORATION PRIVATE LIMITED [Strike Off] CIN = U99999KA1951PTC000699

    ST. No. 42367 of 2018 (Arising out of Order-in-Appeal No. 363 of 2018) & Final Order No. 40631 of 2019

    Decided On, 03 April 2019

    At, Customs Excise and Service Tax Appellate Tribunal South Zonal Bench At Chennai

    By, THE HONOURABLE MRS. C.S. SULEKHA BEEVI
    By, JUDICIAL MEMBER

    For the Appellant: R. Viswanathan, Cons. For the Respondent: L. Nandakumar, AC (AR).



Judgment Text

1. Brief facts are that the appellants are providing Consulting Engineering and Information Technology Software Service. They filed refund claim for Rs.8,54,696/- for the period Apr.’15 to Mar.’16 on 21.01.2017 under Rule 5 of Cenvat Credit Rules, 2004 for refund of unutilized Cenvat credit. After due process of law, the refund sanctioning authority rejected the refund claim on various grounds. In appeal, the Commissioner (Appeals) upheld the same. Hence this appeal.

2. On behalf of the appellant, the learned consultant Shri R. Viswanathan explained the various grounds on which the refund has been rejected, which are detailed below:-

(i) An amount of Rs.20,109/- has been rejected in respect of Car Parking Charges paid by the appellant. He submitted that Car Parking Services were availed by the appellant in order to facilitate the parking of cars within the appellant’s premises. He relied upon the decision in the case of M/s. BCH Electric Ltd., Vs Commissioner of Central Excise, Delhi reported in 2013 TMI 551 CESTAT NEW Delhi.

(ii) An amount of Rs.16,043/- has been rejected by the original authority stating that the appellant has not produced related invoices. The learned consultant submitted that the Range authority did not seek for furnishing of the documents. The appellant is willing and ready to furnish necessary documents to prove the eligibility of credit.

(iii) He submitted that an amount of Rs.5,76,763/- for the period from Apr.’15 to Dec.’15 is held as time-barred by the adjudicating authority, which is incorrect. He explained that the appellant is raising invoices in March and they do not have any turnover for the quarter till Dec.’15. Therefore, the accumulated Cenvat credit was carried forward and was claimed under quarter ending Mar.’16. As per the Larger Bench decision in the case of Commissioner of Central Excise Vs M/s. Span Infotech, the relevant date for considering the limitation is the date of FIRC for Export of Services. The FIRC statement reconciliation is furnished by the appellant. Further that the appellant had received some amount as advance and this was not considered for the total export turnover. Thereafter, the said advance was adjusted to the charges of the services. This aspect has not been taken into consideration by the authorities below. The rejection alleging that part of the refund claim is time-barred is only due to erroneous approach taken by the authorities below.

(iv) An amount of Rs.2,41,781/- has been rejected as stated in para 12 (c) of Order-in-Original alleging that the appellant has not debited the credit before filing the refund claim. In fact, the appellant has debited the credit on 31.03.2016 and a revised ST-3 return was filed. The notification does not state that the appellant has to reflect the same in the ST-3 returns. It is sufficient, if the appellant debits the credit before the refund claim. The condition has been satisfied and, therefore, the rejection on this ground is incorrect.

(v) The amount of Rs.2,41,781/- has been rejected alleging that at a time of filing the refund claim, the appellant has no balance in their Cenvat Credit account. It is submitted by the learned consultant that after debiting Cenvat account on 31.03.2016, the ST-3 returns were filed. Only after such debit, the appellant has filed the refund claim for which reason that Cenvat Credit Accounts reflects zero balance. It is very much clear that the appellant has sufficient Cenvat Credit balance, which was debited as per the condition of the notification. That the authorities ought not to have rejected the refund claim stating this reason. He relied on the decision in the case of M/s. Synthesis Healthcare Services LLP Vs Commissioner of GST & CE [Chennai-South] vide Final Order No.40198/2019, dated 18.01.2019.

3. The learned Authorised Representative for the Revenue Shri L. Nandakumar, AC (AR) supported the findings in the impugned order. He submitted that most of the contentions raised by the learned consultant is based on facts which require verification by the department. It is, therefore, necessary to remand the matter to the refund sanctioning authority.

4. Heard both sides.

5. The first issue is with regard to the non-refund of credit with respect to Car Parking Charges. It is not disputed that the appellants have availed the said charges for car parking facilities within their premises. It is very much necessary for appellants to have this service. Therefore, I find that the rejection of refund on Car Parking Charges is unjustified and requires to be set aside, which I hereby do.

6. On going through the other grounds for rejection of refund, as rightly pointed out by learned Authorised Representative for the Revenue, I find that most of the issue requires verification by the refund sanctioning authority. Therefore, I deem it fit to remand the matter to the refund sanctioning authority, who shall look into

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the pleas put forward by the appellant as narrated above. The decisions relied upon by the appellant shall also be taken into consideration. The appellant shall be given an opportunity to furnish necessary evidence and also for personal hearing. 7. From the foregoing, the impugned order to the extent of rejecting the refund claim in respect of Car Parking Charges is set aside. The other issues are remanded to the refund sanctioning authority, who shall relook into the matter. Appeal is thus partly allowed and partly remanded in the above terms.
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