Commissioner of Central Tax & Central Excise (previously Commissioner of Central Excise, Customs and Service Tax) v Xerox Business Services India Pvt Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY ,THE 19TH DAY OF FEBRUARY 2019 / 30TH MAGHA, 1940** **C.E.Appeal.No. 32 of 2018** **AGAINST THE ORDER DATED 25.10.2017 IN OTHERS 22626/2017 of CUSTOMS,EXCISE&SERVICE TAX APP.TRIBUNAL,BANGALORE** ## **APPELLANT:** **THE COMMISSIONER OF CENTRAL TAX & CENTRAL EXCISE, (PREVIOUSLY THE COMMISSIONER OF CENTRAL EXCISE,CUSTOMS AND SERVICE TAX),C.R.BUILDING,I.S.PRESS ROAD,COCHIN-682018.** **BY ADV. SMT.SINDHUMOL.T.P., CGC** ## **RESPONDENT/APPELLANT:** **XEROX BUSINESS SERVICES INDIA PVT LTD. VISMAYA BUILDING,INFO PARK,KAKKANADU,ERNAKULAM682030,KERALA.** **BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR SRI.JOSON MANAVALAN SRI.K.JOHN MATHAI SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM** ## **OTHER PRESENT:** ## **SRI M.GOPIKRISHNAN NAMBIAR** **THIS CENTRAL EXICISE APPEAL HAVING BEEN FINALLY HEARD ON 19.02.2019, ALONG WITH C.E.Appeal.33/2018, C.E.Appeal.42/2018, C.E.Appeal.43/2018, C.E.Appeal.47/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **C.E.Appeal.No. 32, 33, 42, 43 & 47 of 2018** **-:2:-** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY ,THE 19TH DAY OF FEBRUARY 2019 / 30TH MAGHA, 1940** **C.E.Appeal.No. 33 of 2018** **AGAINST THE ORDER DATED 25-10-2017 IN OTHERS 22627/2017 of CUSTOMS,EXCISE&SERVICE TAX APP.TRIBUNAL,BANGALORE** ## **APPELLANT/RESPONDENT:** **THE COMMISSIONER OF CENTRAL TAX & CENTRAL EXCISE (PREVIOUSLY THE COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX), C.R. BUILDING, I.S. PRESS ROAD, COCHIN - 682018.** **BY ADV. SMT.T.P.SINDHUMOL** ## **RESPONDENT/APPELLANT:** **XEROX BUSINESS SERVICES INDIA PVT. LTD. VISMAYA BUILDING, INFO PARK, KAKKANADU, ERNAKULAM - 682030, KERALA.** **BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR SRI.JOSON MANAVALAN SRI.K.JOHN MATHAI SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.P.GOPINATH (SR.) SRI.RAJA KANNAN** **THIS CENTRAL EXICISE APPEAL HAVING BEEN FINALLY HEARD ON 19.02.2019, ALONG WITH C.E.Appeal.47/2018, C.E.Appeal.43/2018, C.E.Appeal.42/2018, C.E.Appeal.32/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.E.Appeal.No. 32, 33, 42, 43 & 47 of 2018** ## **-:3:-** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY ,THE 19TH DAY OF FEBRUARY 2019 / 30TH MAGHA, 1940** **C.E.Appeal.No. 42 of 2018** **AGAINST THE ORDER DATED 25-10-2017 IN OTHERS 20532/2017 of CUSTOMS,EXCISE&SERVICE TAX APP.TRIBUNAL,BANGALORE** ## **APPELLANT/RESPONDENT:** **THE COMMISSIONER OF CENTRAL TAX & CENTRAL EXCISE (PREVIOUSLY THE COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX) C.R BUILDING, I.S PRESS ROAD, COCHIN-682018.** **BY ADV. SMT.SINDHUMOL.T.P., CGC** ## **RESPONDENT/APPELLANT:** **M/S. XEROX BUSINESS SERVICES INDIA PVT LTD. VISMAYA BUILDING, INFO PARK, KAKKANADU, ERNAKULAM -682030, KERALA.** **BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR SRI.JOSON MANAVALAN SRI.K.JOHN MATHAI SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.P.GOPINATH (SR.) SRI.RAJA KANNAN** **THIS CENTRAL EXICISE APPEAL HAVING BEEN FINALLY HEARD ON 19.02.2019, ALONG WITH C.E.Appeal.47/2018, C.E.Appeal.43/2018, C.E.Appeal.32/2018, C.E.Appeal.33/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **C.E.Appeal.No. 32, 33, 42, 43 & 47 of 2018** **-:4:-** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY ,THE 19TH DAY OF FEBRUARY 2019 / 30TH MAGHA, 1940** **C.E.Appeal.No. 43 of 2018** **AGAINST THE ORDER DATED 25-10-2017 IN OTHERS 22629/2017 of CUSTOMS,EXCISE&SERVICE TAX APP.TRIBUNAL,BANGALORE** **APPELLANT/RESPONDENT:** **THE COMMISSIONER OF CENTRAL TAX & CENTRAL EXCISE (PREVIOUSLY THE COMMISSIONER OF CENTRAL EXCISE,CUSTOMS AND SERVICE TAX),C.R.BUILDING, I.S. PRESS ROAD,COCHIN - 682 018.** **BY ADV. SMT.T.P.SINDHUMOL** ## **RESPONDENT/APPELLANT:** **XEROX BUSINESS SERVICES INDIA PVT. LTD. VISMAYA BUILDING, INFO PARK,KAKKANADU, ERNAKULAM - 682 030, KERALA.** **BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR** **SRI.JOSON MANAVALAN SRI.K.JOHN MATHAI SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.P.GOPINATH (SR.)** **THIS CENTRAL EXICISE APPEAL HAVING BEEN FINALLY HEARD ON 19.02.2019, ALONG WITH C.E.Appeal.47/2018, C.E.Appeal.42/2018, C.E.Appeal.32/2018, C.E.Appeal.33/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.E.Appeal.No. 32, 33, 42, 43 & 47 of 2018** ## **-:5:-** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY ,THE 19TH DAY OF FEBRUARY 2019 / 30TH MAGHA, 1940** **C.E.Appeal.No. 47 of 2018** ## **APPELLANT/RESPONDENT:** **THE COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE (PREVIOUSLY THE COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, C.R.BUILDING, I.S PRESS ROAD, COCHIN 682018** **BY ADV. SMT.T.P.SINDHUMOL** ## **RESPONDENT/APPELLANT:** **M/S XEROX BUSINESS SERVICE INDIA PVT LTD VISMAYA BUILDING, INFO PARK, KAKKANADU, ERNAKULAM 682030** **BY ADVS. SRI.JOSON MANAVALAN SRI.K.JOHN MATHAI SRI.KURYAN THOMAS SRI.M.GOPIKRISHNAN NAMBIAR SRI.PAULOSE C. ABRAHAM SRI.P.GOPINATH (SR.)** **THIS CENTRAL EXICISE APPEAL HAVING BEEN FINALLY HEARD ON 19.02.2019, ALONG WITH C.E.Appeal.43/2018, C.E.Appeal.42/2018, C.E.Appeal.32/2018, C.E.Appeal.33/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **C.E.Appeal.No. 32, 33, 42, 43 & 47 of 2018** ## **-:6:-** ## **JUDGMENT** ## **K.VINOD CHANDRAN,J.** These appeals arise from an order of the Customs, Excise and Service Tax Appellate Tribunal _(hereinafter referred to as 'the_ _Tribunal')._ The First Appellate Authority removed an observation in its original order, by a corrigendum; which was set aside by the Tribunal. 2. The First Appellate Authority is a Central Excise Officer as understood under the Finance Act,1994 _(hereinafter referred to as 'the Act');_ read with Section 2(b) of the Central Excise Act, 1944. The issue before the First Appellate Authority was with respect to the rebate claimed as per Annexure-A1 notification. It was the contention of the Assessing Officer that the documents produced were insufficient to allow the claim. The First Appellate Authority found that the documents were sufficient and for verification of the ## **C.E.Appeal.No. 32, 33, 42, 43 & 47 of 2018** ## **-:7:-** documents; remanded the matter, for the limited purpose of quantification of rebate to the appellant. The operative portion of the order read so: _“I remand back to the adjudicating authority officer as per Section 85(4) of Finance Act, for the limited purpose of verification of quantum of rebate sanctioned to the appellant. The appellant is directed to produce documents to establish that the Cenvat credit was utilised for payment of service tax on service exported. Interest will also be paid in accordance with law. I direct the adjudicating authority to pass an order within 3 months from the receipt of this order.”_ 3. Later, after three months, a corrigendum was issued deleting the sentence “Interest will also be paid in accordance with law”. The learned Standing Counsel appearing for the Revenue submits that the corrigendum was issued appropriately, as a rectification invoking Section 74 of the Act. The learned Counsel appearing for the respondent, however would submit that, no such corrigendum could have been issued under Section 74, since it interferes with a specific direction issued, that too in accordance with the statute. **==> picture [433 x 12] intentionally omitted <==** **C.E.Appeal.No. 32, 33, 42, 43 & 47 of 2018** ## **-:8:-** ## 1994. ## **74.Rectification of mistake** _“(1) With a view to rectifying any mistake apparent from the record, the [Central Excise Officer] who passed any order under the provisions of this Chapter may, within two years of the date on which such order was passed, amend the order._ _(2) Where any matter has been considered and decided in any proceeding by way of appeal or revision relating to an order referred to in subsection (1), the [Central Excise Officer] passing such order may, notwithstanding anything contained in any law for the time being in force, amend the order under that sub-section in relation to any matter other than the matter which has been so considered and decided._ _(3) Subject to the other provisions of this section, the [Central Excise Officer] concerned-_ - _(a) may make an amendment under sub-section (1)_ - _of his own motion;_ _or_ - _(b) shall make such amendment if any mistake is brought to the notice by the assessee or the Commissioner of Central Excise or the Commissioner of Central Excise(Appeals)_ _(4) Any amendment, which has the effect of enhancing [the liability of the assessee or reducing a refund], shall not be made under this section unless the [Central Excise Officer] concerned has given notice to the assessee of his intention so to do and has allowed the assessee a_ ## **C.E.Appeal.No. 32, 33, 42, 43 & 47 of 2018** ## **-:9:-** _reasonable opportunity of being heard._ _(5) Where an amendment is made under this section, an order shall be passed in writing by the [Central Excise Officer] concerned._ _(6) Subject to the other provisions of this Chapter where any such amendment has the effect of reducing the [liability of an assessee or increasing the refund], the [Central Excise Officer] shall make any refund which may be due to such assessee._ _(7) Where any such amendment has the effect of enhancing the liability of the assessee or reducing the refund already made, the [Central Excise Officer] shall make an order specifying the sum payable by the assessee and the provisions of this Chapter shall apply accordingly._ 5. We are of the opinion that the corrigendum issued was incompetent in so far as the provisions of Section 74 are concerned. The deletion of the interest granted cannot be deemed to be a mistake apparent from the record. It was a considered decision entered into by the First Appellate Authority and the interest payable would be in accordance with law i.e., the statute. There is in fact no correction or rectification of a mistake, especially since the grant of interest on a refund ## **C.E.Appeal.No. 32, 33, 42, 43 & 47 of 2018** ## **-:10:-** is a statutory consequence. Further, it is to be noticed that the corrigendum issued has the effect of reducing the amounts of refund, in so far as the interest liability is concerned and then necessarily there should have been a notice issued. The learned Standing Counsel would submit that there is no reduction of the quantum of refund and it is only the interest liability which is being modified by the order. The interest liability, as noticed is a necessary consequence arising from the statute, specifically Section 11BB of the Central Excise Act, which cannot be restricted by a statutory authority. Even if the specific direction for grant of interest was not there in the order, the assessee would be entitled to the claim under Section 11BB from the date of refund application as has been held in _**Ranbaxy Laboratories Ltd. v. Union**_ ## _**of India [2011(273) E.L.T. 3(S.C.)].**_ 6. In fact, it is also to be noticed that the revenue never challenged the original order, wherein eligibility of refund was found and ## **C.E.Appeal.No. 32, 33, 42, 43 & 47 of 2018** ## **-:11:-** interest was granted, as a necessary statutory consequence. In such circumstances, we find that the corrigendum was issued in excess of the power conferred under Section 74. We are in perfect agreement with the order of the Tribunal. We, hence, reject these appeals, confirming the order of the Tribunal. **Sd/-** ## **K.VINOD CHANDRAN** ## **JUDGE** **Sd/-** **ASHOK MENON** **JUDGE** DST ## **C.E.Appeal.No. 32, 33, 42, 43 & 47 of 2018** ## **-:12:-** ## **APPENDIX OF C.E.Appeal 32/2018** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **TRUE COPY OF THE NOTIFICATION NO.11/2005-ST DATED 19.4.2005** **ANNEXURE A2** **TRUE COPY OF THE ORDER-IN-ORIGINAL NO.44/2009/ST/(R) DATED 10.9.2009 PASSED BY THE DEPUTY COMMISSIONER, EKM I DIVISION** **ANNEXURE A3 TRUE COPY OF THE ORDER-IN-APPEAL NO.COCEXCUS-000-APP-310-315-16-17 DATED 24.8.2016 PASSED BY THE COMMISSIONER (APPEALS), COCHIN** **ANNEXURE A4** **TRUE COPY OF THE CORRIGENDUM DATED 17.1.2017 ISSUED BY THE COMMISSIONER (APPEALS) COCHIN IN ORDER-IN-APPEAL NO.COC-EXCUS-000-APP-310-315-16-17** **ANNEXURE A5 TRUE COPY OF THE ORDER-IN-ORIGINAL NO.45/2017 ST (REBATE) DATED 24.4.2017** **ANNEXURE A6 ORIGINAL OF THE FINAL ORDER NO.22626/2017 DATED 25.10.2017 PASSED BY HON'BLE CESTAT, BANGALORE** ## **C.E.Appeal.No. 32, 33, 42, 43 & 47 of 2018** ## **-:13:-** ## **APPENDIX OF C.E.Appeal 33/2018** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE NOTIFICATION NO.11/2005-ST DATED 19.4.2005 ANNEXURE A2 TRUE COPY OF THE ORDER-IN-ORIGINAL NO.44(A)2009/ST/(R) DATED 30.10.2009 PASSED BY THE DEPUTY COMMISSIONER, EKM I DIVISION ANNEXURE A3 TRUE COPY OF THE ORDER-IN-APPEAL NO.COCEXCUS-000-APP-310-315-16-17 DATED 24.8.2016 PASSED BY THE COMMISSIONER (APPEALS), COCHIN** **ANNEXURE A4 TRUE COPY OF THE CORRIGENDUM DATED 17.1.2017 ISSUED BY THE COMMISSIONER (APPEALS) COCHIN IN ORDER-IN-APPEAL NO.COCEXCUS-000-APP-310-315-16-17 ANNEXURE A5 TRUE COPY OF THE ORDER-IN-ORIGINAL NO.45/2017 ST (REBATE) DATED 24.4.2017 ANNEXURE A6 ORIGINAL OF THE FINAL ORDER NO.22627/2017 DATED 25.10.2017 PASSED BY HON'BLE CESTAT, BANGALORE** ## **C.E.Appeal.No. 32, 33, 42, 43 & 47 of 2018** ## **-:14:-** ## **APPENDIX OF C.E.Appeal 42/2018** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **TRUE COPY OF THE NOTIFICATION NO.11/2005-ST DATED 19.4.2005** **ANNEXURE A2** **TRUE COPY OF THE ORDER-IN-ORIGINAL NO.29/2012/ST/(R) DATED 13.1.2012 PASSED BY THE DEPUTY COMMISSIONER, EKM I DIVISION** **ANNEXURE A3 TRUE COPY OF THE ORDER-IN-APPEAL NO.COCEXCUS-000-APP-310-315-16-17 DATED 24.8.2016 PASSED BY THE COMMISSIONER (APPEALS), COCHIN** **ANNEXURE A4 TRUE COPY OF THE CORRIGENDUM DATED 17.1.2017 ISSUED BY THE COMMISSIONER (APPEALS) COCHIN IN ORDER-IN-APPEAL NO.COCEXCUS-000-APP-310-315-16-17** **ANNEXURE A5 TRUE COPY OF THE ORDER-IN-ORIGINAL NO.45/2017 ST (REBATE) DATED 24.4.2017 ANNEXURE A5 TRUE COPY OF THE ORDER-IN-ORIGINAL NO.45/2017 ST (REBATE) DATED 24.4.2017** **ANNEXURE A6 ORIGINAL OF THE FINAL ORDER NO.22630/2017 DATED 25.10.2017 PASSED BY HON'BLE CESTAT, BANGALORE** ## **C.E.Appeal.No. 32, 33, 42, 43 & 47 of 2018** ## **-:15:-** ## **APPENDIX OF C.E.Appeal 43/2018** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE NOTIFICATION NO.11/2005-ST DATED 19.4.2005 ANNEXURE A2 TRUE COPY OF THE ORDER-IN-ORIGINAL NO.29/2011/ST/(R) DATED 20.3.2011 PASSED BY THE ASSISTANT COMMISSIONER, EKM I DIVISION ANNEXURE A3 TRUE COPY OF THE ORDER-IN-APPEAL NO.COCEXCUS-000-APP-310-315-16-17 DATED 24.8.2016 PASSED BY THE COMMISSIONER (APPEALS), COCHIN ANNEXURE A4 TRUE COPY OF THE CORRIGENDUM DATED 17.1.2017 ISSUED BY THE COMMISSIONER (APPEALS) COCHIN IN ORDER-IN-APPEAL NO.COCEXCUS-000-APP-310-315-16-17 ANNEXURE A5 TRUE COPY OF THE ORDER-IN-ORIGINAL NO.45/2017 ST (REBATE) DATED 24.4.2017 ANNEXURE A6 ORIGINAL OF THE FINAL ORDER NO.22629/2017 DATED 25.10.2017 PASSED BY HON'BLE CESTAT, BANGALORE** ## **C.E.Appeal.No. 32, 33, 42, 43 & 47 of 2018** ## **-:16:-** ## **APPENDIX OF C.E.Appeal 47/2018** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE NOTIFICATION NO.11/2005-ST DATED 19.4.2005** **ANNEXURE A2 TRUE COPY OF THE ORDER-IN-ORIGINAL NO.33/2012/ST/(R) DATED 14.2.2012 PASSED BY THE ASSISTANT COMMISSIONER, EKM I DIVISION** **ANNEXURE A3 TRUE COPY OF THE ORDER-IN-APPEAL NO.COCEXCUS-000-APP-310-315-16-17 DATED 24.8.2016 PASSED BY THE COMMISSIONER (APPEALS), COCHIN** **ANNEXURE A4 TRUE COPY OF THE CORRIGENDUM DATED 17.1.2017 ISSUED BY THE COMMISSIONER (APPEALS) COCHIN IN ORDER-IN-APPEAL NO.COCEXCUS-000-APP-310-16-17** **ANNEXURE A5 TRUE COPY OF THE ORDER-IN-ORIGINAL NO.45/2017 ST (REBATE) DATED 24.4.2017** **ANNEXURE A6 ORIGINAL OF THE FINAL ORDER NO.22631/2017 DATED 25.10.2017 PASSED BY HON'BLE CESTAT, BANGALORE**