9911796707
TMI Blog2025 (1) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... e 226 of the Constitution of India, calling for the records pertaining to the impugned Order-In-Original No. CGST/WS08/Ref-06/ST/ BSM/19-20 dated 13 August 2019 and after going into the validity and legality thereof to quash and set aside the same; (b) Your Lordships be pleased to issue writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus ordering and directing the Respondents, their subordinate, servants and agents to forthwith: (i) withdraw and/or cancel impugned Order-In- Original No. CGST/WS08/Ref-06/ST/ BSM/19-20 dated 13 August 2019; (ii) sanction the rebate claim of Rs.11,54,82,738/- as filed by the Petitioner along with interest. (c) Pending the hearing and final disposal of this Petition, Your Lordships be pleased to direct the Respondents by an interim order of this Hon'ble Court to forthwith deposit an amount of Rs.11,54,82,738/- in this Hon'ble Court with a liberty to the Petitioner to withdraw the same, without prejudice to the Petitioner's right of refund of the actual amount along with appropriate interest; (d) An ex-parte ad-interim relief in terms of prayer (c) above may kindly be granted; (e) Such other and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g documents: (i) Details of invoices raised (i.e. Register for output services) on our clients for services exported. (ii) Copy of Export invoices (output service invoice) along with Foreign Inward Remittance (FIRCs). (iii) Along with the Rebate Claim 1, 2, 3 and 6, the petitioner has also submitted ST-3 returns for the relevant period. (iv) Along with the Rebate Claim 1, 2, 3, 4, 5 and 6, the petitioner has also submitted TR-6/GAR-7 challan evidencing payment of service tax. (vii) It is the case of the petitioner that the Assistant Commissioner of Service Tax, Refund (Division VI), Delhi- II issued deficiency letters in respect of rebate claim Nos. 1, 2, 3 and 6 which were replied by the petitioner in the year 2015 by supplying the documents requested in the deficiency letters. (viii) The Assistant / Deputy Commissioner of Service Tax, Refund (Division VI), Delhi-II passed 7 separate orders rejecting the rebate claims filed by the petitioner on 24th June 2015. (ix) Being aggrieved, the petitioner preferred appeals before the Commissioner (Appeals-I), New Delhi. The petitioner was granted personal hearing on 22nd February 2016 by the Commissioner (Appeals-I), New Delh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same were never received by the office of respondent No.3. (xvi) Thereafter, respondent No.3, vide letter dated 20th February 2017, requested the petitioner to submit the original documents pertaining to rebate claims and refused to accept the photocopies of original documents submitted by the petitioner and further instructed the petitioner to liaise with the office of Assistant / Deputy Commissioner of Service Tax, Refund (Division VI), Delhi- II and get the documents to be transferred by the office of respondent No.3. (xvii) Therefore, the petitioner, vide letter dated 21st March 2017, informed respondent No.3 that it has already submitted all the supporting documents along with the rebate claims and requested respondent No.3 to pass the order on the basis of documents re-submitted by the petitioner. (xviii) Respondent No.3, however, without taking into consideration the request of the petitioner, by order dated 9th May 2017, rejected all the 7 rebate claims filed by the petitioner on the ground that original files of the rebate claims submitted by the petitioner were not received from the office of the Assistant / Deputy Commissioner of Service Tax, Refund (Division VI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsfer the same is not the responsibility of the appellant but of the department. It is needless to say that sincere efforts could have resulted in finding the records; it is quite unbelievable that the records sent through Speed Post are not traceable. It is directed to take up the matter with proper authority if required with higher authority of the department at Delhi, and with postal departmental to trace the consignment of speed post. Simultaneously on the basis of documents submitted by the appellants adjudicating authority should examine from legal point of view/merit of eligibility of rebate, it is also directed to the appellant to give cooperation to the department for such purpose. Substantial rights of the assessee if any cannot be denied without verification and natural justice. 10. In light of the above discussion, I remand back the matter to the present adjudicating authority to decide the case afresh preferably within four weeks from the receipt of this order, following the principle of natural justice as per the discussion above." (xx) Pursuant to the above Order-in-Appeal dated 29th January 2018, respondent No.3, by letter dated 19th February 2019, called upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to provide the information/documents, since as per post office staff the complaint regarding non delivery of any item (files in this case) can be done within 45 days of the dispatch and records of the speed post are maintained for 6 months only. Therefore, there is no way to ascertain the status of the files by the post office also. Now tehre is no scope to find the required documents from the Service Tax, Delhi and or from the post office Delhi. 27. I find that the asssessee has submitted the photocopies of documents (26 box files) of 2 rebate claims out of 07 rebate claims i.e. for the claim of Rs.1,24,53,886/- for the period Apr 2011 to Sep 2011 (12 Box files) and for the claim of Rs.3,90,74,456/- for the period Oct 2010 to Mar 2011 (14 Box files) vide their letter dtd. 28.10.2016. On scrutiny of the said documents it is observed that there were only two types of documents i.e. Invoices and Foreign Inward Remittance Certificate (FIRC). These documents are not sufficient for rebate claim. The all essential documents like Export Invoices, Payment Proof, Cenvat Register/GAR-7/TR-6 Challans, FIRCs & Service Agreement/Contracts held with the Foreign Service Recipients etc. were n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were not found or being transferred from Delhi as observed in para 26 of the impugned order. Respondent No.3, therefore, could not have rejected the claim only in the absence of original files which were submitted by the petitioner at Delhi to the Service Tax Department at Delhi. Such approach of respondent No.3 is in fragrant breach of the directions issued by the Commissioner (Appeals) to pass the eligibility of rebate claim filed by the petitioner in the year 2015. 5. Learned advocate Mr. Anand Nainawati for the petitioner referred to the further affidavit filed by the petitioner so as to provide the list of documents to be filed before respondent No.3 for adjudication of rebate claims and submitted that the petitioner is having photocopies of following documents which can be submitted before respondent No.3: Period Amount Documents details 2006-07 6,34,27,140/- Copies of Invoice as available along with excel sheet of FIRC details 2010-11 3,92,19,454/- Copies of Invoice as available along with excel sheet of FIRC details 2011-12 1,28,36,144/- Copies of Invoice. Copies of FIRCs and excel sheet of FIRCs 6. Referring to the above details, it was submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments and the documents so far furnished by the petitioner do not suffice for ascertaining the nature of petitioner's service and it is not possible to know whether these services qualify as 'export' under the Export of Service Tax Rules, 2005 or not. 8. That, 6 Rebate Claims were rejected by the Assistant Commissioner of Service Tax, Division-VI, Delhi-II Commissionerate on the ground of limitation under Section 11B of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. Therefore, those 6 Rebate Claims are subject to limitation provided under Section 11B of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994, on submission of essential documents." 8. Referring to the aforesaid affidavit, it was submitted that the respondent authority shall carry out adjudication process in accordance with law on submission of essential documents by the petitioner. 9. Having heard learned advocates for the respective parties and considered the facts of the case, respondent No.3 has already pre-determined its mind to reject the rebate claims filed by the petitioner as stated in para 8 of the affidavit reproduced hereinabove on the ground of limita ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
