2015 (4) TMI 1038 - AT - Service Tax

Denial of refund claim - services received for export of the goods under Notification No. 17/09 ST dated 7.7.09 - Held that - Commissioner (Appeals) has given clear cut finding that on merits, respondent is entitled to refund claim and sent the matter back to the adjudicating authority for processing the claim. The contention of the revenue is that process of refund claim sent to the lower authority is a remand of the appeal is not correct. Infact the understanding of the remand order by the departmental officer is very unfortunate to understand that if the case has been decided on merits and same is sent to lower authority for processing the same and if it is remand option for deciding and the department would act to remand only. Therefore, understanding of the departmental officer as well as learned AR that if refund claim is allowed and send to the lower authority for processing the same amounts to remand is not correct. In these circumstances, I do not find any merit in the Revenue s appeal - Decided against Revenue.

Summary

Issues:
1. Admissibility of refund claim for services received for export of goods under Notification No. 17/09 ST dated 7.7.09.
2. Denial of refund claim for transport charges of rail port, terminal charges at the port of export, and CHA services.
3. Power of Commissioner (Appeals) to remand the matter.
4. Proper section to be quoted in the Review order.
5. Understanding of remand order by the departmental officer.

Analysis:
1. The case involved a dispute regarding the admissibility of a refund claim filed by the respondent for services received for the export of goods under Notification No. 17/09 ST dated 7.7.09. The adjudicating authority initially denied the refund claim for services such as transport charges of rail port, terminal charges at the port of export, and CHA services.

2. The learned Commissioner (Appeals) examined the issues on merits and held that the refund claim was admissible, directing the adjudicating authority to process the claim accordingly. The Revenue appealed against this decision, arguing that the Commissioner (Appeals) did not have the power to remand the matter back to the adjudicating authority.

3. The Revenue contended that the matter being sent back for processing the refund claim amounted to a remand, which was not permissible. However, the Tribunal found that the understanding of the remand order by the departmental officer was incorrect. The Tribunal clarified that sending a case back for processing after a decision on merits does not constitute a remand.

4. Additionally, the Revenue raised an issue regarding the proper section quoted in the Review order. It was noted that the Review order incorrectly mentioned Section 35 A(3) of the CEA, 1944, instead of the correct section, which was Section 85(5) of the Finance Act, 1994.

5. After considering the submissions made by the Revenue, the Tribunal upheld the decision of the Commissioner (Appeals) and dismissed the Revenue's appeal. The Tribunal emphasized that sending the matter back for processing after a decision on merits did not amount to a remand, and therefore, the Revenue's appeal was found to be without merit.