Apotex Research Pvt. Limited v. Commissioner of Central Excise, Customs and Service Tax, Bangalore - (Customs, Excise and Service Tax Appellate Tribunal) (30 Jan 2017)

For every kind of refund, time limit as prescribed under Section 11B of Central Excise Act, 1944 is applicable

MANU/CB/0027/2017

Excise

In facts of present case, Appellant is a 100% EOU engaged in manufacture and export of pharmaceutical products issued with private bonded warehouse and IBM sanction order. Appellants availed CENVAT credit of excise duty paid on their input and service tax paid on their input services. Appellant availed CENVAT credit of service tax paid on input services viz., general insurance, canteen service and group medical and health insurance service. Appellant filed a refund application for Rs. 21,06,241/- based on Orders-in-Appeal No. 380-381/2012 CE for period April 2007 to September 2008. Adjudicating authority rejected refund on some input services in original adjudicating proceedings. Appellant preferred an appeal before Commissioner (A) passed order giving partial relief and remanded case back to original adjudicating authority. Adjudicating authority passed order granting partial relief against which Appellant filed appeal once again before first appellate authority i.e. for second time and Commissioner (A) concurred with views of adjudicating authority and rejected appeal of Appellant by holding that, refund claim for Rs. 1,29,612/- availed on input services for period April 2007 to September 2008 is inadmissible pertaining to insurance service and catering services and also rejected refund for Rs. 6,97,971/- pertaining to employees health insurance services and is not related to manufacturing activity. Aggrieved by said order, Appellant has filed present appeal.

Disputed services fall in the definition of input services and the same has been held in number of decisions rendered by the higher judicial fora. He further submitted that in the case of canteen services (outdoor catering services), the food is provided to the employees. He also submitted that it is a statutory requirement under the labour laws to maintain canteen facilities and it is indirectly related with the manufacturing of the final products. By various decisions of the Tribunal and the High Court has held that there is no necessity of having 250 employees for claiming CENVAT credit on canteen services. Canteen services fall in definition of input service and Appellant is entitled to claim refund of CENVAT credit in respect of outdoor catering services. Further, Appellant is situated at a remote area in industrial estate and therefore, it is all the more important to provide canteen facilities to employees.

Supreme Court in case of Mafatlal Industries Ltd. and subsequently clarified by Supreme Court in Anam Electricals Manufacturing Co. and also by High Court of Karnataka in the case of MCI Leasing (P) Ltd., Mysore: 2012-TIOL-54-HC-KAR-ST, have held that for every kind of refund, time limit as prescribed under Section 11B is applicable. Refund of Rs. 5,66,916/- is time bared as held in impugned order and with regard to remaining refund of Rs. 2,60,487/-, Appellant is entitled to the refund of the same being refund rejected on input services with regard to outdoor catering service, general insurance and employees health insurance.

Relevant : Mafatlal Industries Ltd.: MANU/SC/1203/1997 : 1997 (89) ELT 247 (SC), Anam Electricals Manufacturing Co.: MANU/SC/1205/1997 1997 (20) ELT 260 (SC), MCI Leasing (P) Ltd., Mysore: 2012-TIOL-54-HC-KAR-ST

Tags : REFUND ELIGIBILITY TIME BAR