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TMI Blog2011 (9) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... to their client abroad. Advertisement service, Chartered Accountant Services, Management Consultant Services, services are not used for providing the Customer Care Services which was exported. in the appellant's own case CST v. Convergys India (P.) Ltd. (2009 (5) TMI 50 - CESTAT, NEW DELHI), rebate was allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ce exported, evidence of payment of duty on inputs and service tax including cess on input services used for providing taxable service exported and also a declaration that the taxable services, in respect of which rebate has been claimed, have been exported in terms of Rule 3 of the Export of Services Rules, 2005. 1.3 In this case, the appellant filed nine rebate claims for the months from July 2005 to March 2006 with the jurisdictional Assistant Commissioner for total amount of ₹ 2,88,68,969/-. All these rebate claims have been filed within the limitation period prescribed under Section 11B of the Central Excise Act, 1944. The jurisdictional Assistant Commissioner scrutinized these rebate claims and vide order-in-original dated 23.10.2007 sanctioned the rebate claims of total amount of ₹ 2,50,54,831/- and rejected the claim for ₹ 38,14,138/-. Out of ₹ 38,14,138/- which was rejected, an amount of ₹ 18,25,612/- had been rejected on the ground that same was in respect of outdoor caterers service, which was not eligible and in respect of mandap keepers, real estate agents, erection, installation and commissioning services which have not been included in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim of ₹ 2,50,54,831/- ordering its recovery along with interest and its credit to the Consumer Welfare Fund and imposing penalty of equal amount on them under Section 78 of the finance Act, 1994. 1.5 The Commissioner's order was examined by the Committee of Chief Commissioners, which dated 05.01.2010 observing that the Commissioner's order ordering credit of rebate claim to Consumer Welfare Fund is not correct, and that in view of the Apex Court's judgement in the case of CCE v. Cadila Laboratories (P.) Ltd. 2002 (142) ELT 279 (SC) non-compliance of the procedure as laid down in the notification issued under Rule 5 of Export of Service Rules, 2005 shall result in denial of rebate claim to the appellant, directed the Commissioner to file an appeal to the Tribunal for correct determination of these points. The revenue wants to disallow rebate claim to be credited to the Government Account and also wants the penalty to be upheld. The appeal No. ST/106/2010 has been filed by the revenue in pursuance of the direction dated 05.01.2010 of the Committee of the Chief Commissioners and in respect of the appeal of the revenue, the appellant have filed Cross Objection No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conditions as prescribed in the Notification No. 12/2005-ST for claiming rebate have not been fulfilled, the rebate claim has been correctly denied and its recovery from the appellant has been correctly ordered and penalty has been correctly imposed under Section 78 of the Finance Act, 1994. 5. We have carefully considered the submissions from both sides and perused the record. The rebate has been denied by the Commissioner on three grounds- (i) In the monthly declarations filed in terms of para 3.1 of the notification No. 12/2005-ST, the input services namely; Air Travel Agent's Services, Architect's Services, Business Auxiliary Services, Cargo Handling Services, Cleaning Services, Commercial Training or Coaching Services, Consulting Engineer's Services, Customs House Agent's Services, Event Management Services, Internet Services, Manpower Consultancy Services, Storage & Warehousing Services, Technical Inspection & Certification Services, Technical Testing & Analysis Services and tour Operator's Services have not been mentioned and the appellant's contention that these services are covered by - "Other Services" in their declarations, is not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Event Management Services, Internet Services, Manpower Consultancy Services, Storage & Warehousing Services, Technical Inspection and Certification Services, Technical Testing & Analysis Services and Tour Operator's Services have not been declared in the monthly declaration and the services cannot be treated as covered under 'Other Services' in the declaration. 6.1 It is not the case of the department that the abovementioned services which are alleged to be not specifically mentioned in the declarations filed under para 3.1 of the notification, have not been received. There is also no allegation that as per the requirement of para 3.4(a) (ii) the invoices for all the input services had not been submitted. On the contrary, in the order-in-original passed by the Assistant Commissioner, he has given a clear finding that declarations filed were accepted by him on due verification of actual use of input services, except for one service viz outdoor caterer services. The Commissioner while concluding that the condition of para 3.1 of the notification have not been fulfilled, has not stated as to how the above finding of the Assistant Commissioner is incorrect, when as per p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Hon'ble Supreme Court in the case of Cadila Laboratories (P.) Ltd. (supra), relied upon by the department is not applicable to the facts of this case, when there is substantial compliance with the provisions of Notification No. 12/2005-ST regarding the procedure to be followed for claiming the rebate. Therefore, the Commissioner's order disallowing the rebate and ordering its recovery is not sustainable and the same is liable to be set aside. 7. As regards the second ground for denial of rebate claim, we find that it is not disputed that the services, in question, have been exported, that is, the same have been provided to client outside India. The appellant have pleaded that they had produced a statement showing the co-relation between the export invoices and the FICRs, but there is no discussion regarding the same in the impugned order. On the contrary, the Assistant Commissioner in para 10 of the order-in-original sanctioning refund rebate claim has given a categorical finding that the appellant have filed the rebate claim along with requisite evidence as per para 3.4 of the notification and that they have fulfilled all the conditions of the Notification No. 12/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the AC's order without discovery of any new document indicating mis-statement or suppression of some information by the appellant. In such a case, penal provision could be invoked only of there was evidence of collusion with the AC/DC sanctioning the rebate who in spite of the rebate not being admissible sanctioned the same. But there is not a whisper of such allegation against the Assistant Commissioner. In case after case we find the provisions of extended period under proviso to Section 73(1) of the Finance Act, 1994 and proviso to Section 11A(i) of Central Excise Act, 1944, together with penal provisions of Section 11AC of Central Excise Act, 1944/Section 78 of Finance Act, 1994 being invoked in a most casual manner by making the allegation of "suppression of fact", "wilful mis-statement" etc. without examining as to whether there is evidence on record to invoke these provisions and totally ignoring the law laid down in this regard by the Apex Court in a series of judgements - CCE v. Chemphar Drugs and Liniments 1989 (40) ELT 276 (SC), Padmini Products v. Collector of Central Excise 1989 (43) ELT 195 (SC); Pushpam Pharmaceuticals Company v. CCE 1995 (7 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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