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TMI Blog2025 (1) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... laim. Let respondent No.2 be adjudicated the rebate claims of the petitioner on the basis of the documents to be submitted by the petitioner within a period of twelve weeks from the date of receipt of such documents. The impugned Order-In-Original No. CGST/WS08/Ref-06/ST/ BSM/19-20 dated 13th August 2019 is hereby quashed and set aside. Conclusion - The substantial rights of the assessee if any cannot be denied without verification and natural justice. Petition allowed. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA And HONOURABLE MR.JUSTICE D.N.RAY MR ANAND NAINAWATI(5970) FOR THE PETITIONER(S) NO. 1 MR CB GUPTA(1685) FOR THE RESPONDENT(S) NO. 2,3 MR DEVANG VYAS(2794) FOR THE RESPONDENT(S) NO. 1 JUDGMENT ( PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA ) 1. Heard learned advocate Mr. Anand Nainawati for the petitioner and learned advocate Mr. C.B. Gupta for respondent Nos.2 and 3. Learned ASG Mr. Devang Vyas was appearing earlier in the year 2019, but in place, now no one appears and no one has bothered to file appearance for respondent No.1 Union of India. 2. Rule. Learned advocate Mr. C.B. Gupta waives service of notice of rule on behalf of respondent Nos.2 and 3. 3. By this petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the FTO so as to ensure seamless supply of services to their subscribers located outside India. The petitioner, therefore, in normal course of business, entered into an agreement with various FTOs having their permanent establishment outside India and having their establishment and business operations outside India. (v) The petitioner initially paid service tax on the gross invoice value of the service exported to the FTOs located outside India and thereafter claimed rebate of the same as provided under Rule 5 of the Export Rules read with Notification No.11 of 2005 dated 19th April 2005. The petitioner accordingly filed 7 rebate claims with the Delhi Commissionerate in Form ASTR-1, the details of which are as under: Sr. No. Period Amount (Rs.) Date of filing rebate claim 1 August 2006 to March 2007 (Rebate Claim 1) 6,34,27,140 09.11.2011 2 October 2010 to March 2011 (Rebate Claim 2) 3,90,74,456 30.09.2011 3 April 2011 to September 2011 (Rebate Claim 3) 1,24,53,886 28.03.2012 4 July 2011 (Rebate Claim 4) 20,515 08.02.2013 5 October 2011 (Rebate Claim 5) 1,09,086 09.05.2013 6 October 2011 to March 2012 (Rebate Claim 6) 2,52,657 26.06.2012 7 February 2013 (Rebate Claim 7) 1,44,998 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principles of natural justice. (xiii) The petitioner, therefore, requested respondent No.3 by letter dated 30th August 2016 to adjudicate the rebate claims on the basis of the documents submitted by the petitioner at the time of filing of the rebate claims. However, respondent No.3 informed the petitioner that all the documents with respect to 7 rebate claims filed by the petitioner were not available with the office of respondent No.3. The petitioner, therefore, by letter dated 28th October 2016, re-submitted the following documents: (i) List of rebate claims filed by the petitioner. (ii) Copies of all invoices and FIRCs pertaining to Rebate Claim 2 and 3. (iii) Copies of Orders-in-Original passed by the Assistant / Deputy Commissioner of Service Tax, Refund (Division VI), Delhi-II. (xiv) The petitioner thereafter, by letter dated 3rd February 2017, once again requested respondent No.3 to adjudicate the rebate claims on the basis of documents submitted by the petitioner. (xv) It appears that the office of the Assistant / Deputy Commissioner of Service Tax, Refund (Division VI), Delhi- II, vide letter dated 19th January 2017, had informed respondent No.3 that the documents of rebat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not properly discussed in the impugned order. There are several judgments for and against the applicability of limitation on the claim of rebate which need to be discussed properly. Without verification of the documents the matter has been decided very vaguely as time barred. Further it is observed that adjudicating authority has decided the case in remand in a very casual approach i.e. seven OIA s remanded has been decided vide single order, which is an astonishing act. 9. Regarding the issue of non-submission of required documents, the adjudicating authority has not properly discussed the same. The appellants have stated that they have submitted all the required documents along with the rebate claims. I believe that this issue needs to be properly verified by the present adjudicating authority. It is evident that the adjudicating authority has made efforts to get the record transferred from the Service Tax Delhi, but simply quoting that the Service Tax Delhi has sent the records by speed post to assistant Commissioner Gujarat , but not received by them does not conclude that the records are not available or not filed by the appellant. It is also fact that the records were su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y without insisting for submissions of original copies as ordered by the Commissioner (Appeals), Ahmedabad. (xxiv) It is astonishing and surprising that respondent No.3 Assistant Commissioner of CGST, Division-VIII (Vejalpur), Ahmedabad (South) in total disregard and ignoring the directions issued by the Commissioner (Appeals), Ahmedabad, passed the impugned order dated 13th August 2019 rejecting all 7 rebate claims filed by the petitioner in the absence of original documents submitted by the petitioner at the time of filing of rebate claim observing as under: 26. I also find that this office has been given 3 personal hearings to the assessee on 26.03.2019, 01.04.2019 10.04.2019 as a natural justice. Further, this office has also been requested the Assistant Commissioner, Service Tax, Div-VI, Delhi to provide original documents vide letter dated 05.09.2016 several reminders dtd. 24.10.2016, 15.11.2016, 25.11.2016 13.01.2017. I find that Assistant Commissioner, Service Tax, Div-VI, Delhi was unable to provide the requested documents as per their letter F. No. CNDL-II/ST/Div-VI/MiscCorres/2015 letter dated 19.01.2017. As per the said letter it is also find that the concerned post off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for sanctioning the rebate claim, but this office was unable to receive the original documents from the Service Tax Office, Delhi, as mentioned above. In absence of those ORIGINAL files which has been submitted by the said claimant to Service Tax, New Delhi, this office cannot proceed with the directions of the Hon ble Commissioner (Appeals) with respect to the adjudication of these rebate claims. 29. Further, it is not out of place to mention here, that I pass the following order without going into merit of the case since this office do not have any original refund claim papers. In view of the above, I pass the following order. (xxv) The aforesaid observations made by respondent No.3 are contrary to the directions issued by the Commissioner (Appeals) in the order dated 29th January 2018 to the effect that respondent No.3 was supposed to examine the eligibility of the rebate claims filed by the petitioner on the basis of the documents submitted by the petitioner and the petitioner was also directed to render cooperation for such purpose. (xxvi) It appears that respondent No.3 never called upon the petitioner to provide documents as the original documents filed by the petitioner w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the required documents / records / files were not received by the present adjudicating authority from the Service Tax, new Delhi office or from Kalkaji Post Office, Delhi. 5. That, the petitioner later on submitted the photocopies of documents (26 Box Files) of only 2 Rebate Claims, i.e., for Rebate Claim of Rs.1,24,53,886/- of April, 2011 to September, 2011 period (12 Box Files) and for Rebate Claim of Rs.3,90,74,456/- for October, 2010 to March, 2011 period (14 Box Files) before the present adjudicating authority, which contains only two types of documents i.e. Invoices and Foreign Inward Remittance Certificate (FIRC). 6. That, in order to decide the Rebate Claims, following documents are required: i. Export Invoices ii. Payment Proof (CENVAT Register / TR-6 / GAR-7 Challans) iii. Foreign Inward Remittance Certificate (FIRC) iv. Service Agreement / Contracts held with the Foreign Service Recipients. 7. That, the aforesaid documents are required to ensure that the conditions and limitation prescribed in Notification No.11/2005-Service Tax dated 19.04.2005 are fulfilled and to decide the Rebate claim. In absence of essential documents and the documents so far furnished by the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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