2011 (2) TMI 33 - AT - Service Tax

Refund - Refund of cenvat credit - Notification No. 5/2006 dated 14.03.2006 - Rule 5 of CCR, 2004 - export of services - Commissioner (Appeals) had not passed a speaking order on the merits of dispute - services involved were essential for the output service rendered by the respondents and directed the original authority to reconsider the refund claim in the light of the CBEC Circular No. 120/1/2010 - original authority has passed an order in terms of remand directions, not legal, the appeal has become infructuous Appeal rejected

Summary

Issues:
1. Validity of Commissioner (Appeals) remanding the dispute for fresh adjudication
2. Entitlement to refund of accumulated Cenvat credit

Issue 1: Validity of Commissioner (Appeals) remanding the dispute for fresh adjudication
The appeal filed by the Revenue sought to vacate the impugned order on the ground that the Commissioner (Appeals) could not have remanded the dispute for a fresh adjudication by the original authority in view of the provisions contained in Section 35A(3) of the Central Excise Act 1944. The Commissioner (Appeals) held that the respondents were apparently entitled to the entire refund amount claimed by them based on a CBEC Circular. The Counsel for the respondents submitted that the original authority had already passed a fresh order pursuant to the remand directions contained in the impugned order. The learned JDR reiterated that the Commissioner (Appeals) did not have powers of remand. However, upon careful consideration, it was found that the Commissioner (Appeals) had not passed a speaking order on the merits of the dispute and directed the original authority to reconsider the refund claim. The original authority passed an order in terms of remand directions, rendering the appeal infructuous, and thus, the appeal was rejected.

Issue 2: Entitlement to refund of accumulated Cenvat credit
The respondents, a STPI unit engaged in IT enabled Back Office Services, sought a refund of accumulated Cenvat credit under Rule 5 of Cenvat Credit Rules, 2004. The original authority held that the respondents were entitled to a refund relatable to specific services like Telecom and Internet Service, Courier Service, Renting of Immovable Property service, and Maintenance and Repair Service. However, the respondents were not eligible for a refund of credit relatable to certain other services. The Commissioner (Appeals) held that the respondents were entitled to the entire refund amount claimed by them based on a CBEC Circular stating that the services involved were essential for the output service rendered by the respondents. The Counsel for the respondents confirmed that they had already received the amount originally claimed and disallowed by the original authority. The appeal challenging the impugned order on the grounds of the Commissioner (Appeals) not having powers of remand was rejected as the original authority had passed an order in terms of remand directions, making the appeal infructuous.