2018 (1) TMI 57 - AT - Service Tax

Tribunal remands case for correct Total Turnover calculation under CENVAT Credit Rules

Musigma Business Solutions Pvt Ltd Versus Commissioner of Service Tax Bangalore- V

The Tribunal set aside the impugned order and remanded the case to the original authority to recalculate Total Turnover (TTO) following the correct ... Refund claim - concept of TTO vis-a-vis ETO as defined in Rule 5(1)(E) of CENVAT Credit Rules, 2004 - Held that: - Since the appellant had no other services apart from export services during the refund claim period, the export turnover of services determined in terms of clause (D) of sub-rule (1) shall be the total turnover. The appellant during the relevant period has only ETO, therefore, reimbursement of expenses has to be excluded from the ETO as well as TTO and only then it will give the fair results - both the authorities had wrongly applied the formula as prescribed under Rule 5(1)(E) of CENVAT Credit Rules, 2004 read with N/N. 27/2012-CE NT dt. 18/06/2012. In view of the wrong application of the formula, the refund has been rejected. Matter remanded to to the original authority to recompute the TTO and then decide the refund claim of the appellant - appeal allowed by way of remand. Issues:Calculation of Export Turn Over (ETO) and Total Turnover (TTO) for refund amount computation.Analysis:The appeal challenged the Commissioner(Appeals) order upholding the Assistant Commissioner's decision on ETO and TTO calculation for refund purposes. The appellant, an IT software services provider, filed a refund claim under CENVAT Credit Rules for the period April to June 2013. The Assistant Commissioner sanctioned a partial refund and rejected the rest, leading to the appeal. The appellant argued that the impugned order was legally unsustainable, based on assumptions, and failed to consider the legal position and facts adequately. They contended that the Department rejected the claim on technical grounds without proper appreciation of facts and law. The appellant highlighted that they exported services, paid service tax on input services, and received remittances in foreign exchange. They disputed the Assistant Commissioner's computation of ETO and TTO, emphasizing the exclusion of expenses and other charges not related to exported services. The appellant insisted on uniformity in the formula application to avoid anomalies.The AR supported the impugned order's findings, leading to a detailed analysis by the Tribunal. The Tribunal examined the concept of TTO vis-a-vis ETO as per Rule 5(1)(E) of CENVAT Credit Rules, emphasizing that in the absence of other services during the claim period, ETO should represent the total turnover. The Tribunal concluded that reimbursement of expenses should be excluded from both ETO and TTO for fair results. It found that both authorities incorrectly applied the formula under Rule 5(1)(E) of CENVAT Credit Rules, leading to the refund rejection. Consequently, the Tribunal set aside the impugned order and remanded the case to the original authority to recalculate TTO following the correct formula. The original authority was instructed to ensure adherence to principles of natural justice and provide a reasoned order.In summary, the Tribunal's judgment focused on the correct application of the ETO and TTO calculation formula under CENVAT Credit Rules, emphasizing the exclusion of expenses for fair refund computation. The decision highlighted the need for uniformity and adherence to legal principles in refund claim assessments, ultimately remanding the case for proper recalculations by the original authority.