2011 (12) TMI 132 - AT - Service Tax

Power of the Commissioner (Appeals) to remand - export of IT software - refund claim under Rule 5 of CENVAT Credit Rules 2004 read with Notification No. 5/2006 dated 14.3.2006 on input services used in the export of output services Held that - The Commissioner (Appeals) has examined and found nexus between the input services( viz telcom service, security agency, chartered accountant service etc) and the output services. In effect, the Commissioner (Appeals) has not remitted any issue on merits to be decided by the original authority. It is basically for quantification purposes based on the Chartered Accountant s certificate as envisaged in the Board s Circular dated 19.1.2010. - Decided against the Revenue.

Summary

Issues:
1. Condonation of delay in filing the appeal
2. Stay petition filed by the department
3. Refund claim under CENVAT Credit Rules 2004
4. Powers of remand by the Commissioner (Appeals)
5. Nexus between input services and output services for refund eligibility

Analysis:

1. Condonation of Delay: The Tribunal considered the application for condonation of delay in filing the appeal and granted a condonation of 29 days after reviewing the grounds disclosed by both sides.

2. Stay Petition: The department filed a stay petition which was declined by the Tribunal due to the nature of the dispute. The Tribunal decided not to stay the operation of the impugned order and proceeded with the appeal for final disposal.

3. Refund Claim: The respondent-assessee exported IT software services and filed a refund claim under Rule 5 of CENVAT Credit Rules 2004. The original authority rejected the claim stating a lack of nexus between the input services and the output services exported. The Commissioner (Appeals) set aside the original authority's order, leading to the department's appeal.

4. Powers of Remand: The department argued that the Commissioner (Appeals) lacked the power of remand, citing relevant legal precedents. However, the Tribunal found that the Commissioner (Appeals) had not remitted any issue on merits for decision by the original authority, but for quantification purposes based on a Circular. Thus, the argument regarding the lack of power of remand was deemed irrelevant.

5. Nexus Issue: The Tribunal carefully examined the nexus between the input services and output services exported by the assessee. The Commissioner (Appeals) had given detailed findings on the nexus issue for various services like telecom service, maintenance or repair service, renting of immovable property, security agency service, chartered accountant's services, and clearing & forwarding agency service. The Tribunal upheld the Commissioner (Appeals)'s order, as no valid grounds were presented to interfere with it.

In conclusion, the Tribunal rejected the department's appeal, disposed of the cross objection supporting the Commissioner (Appeals) order, and also disposed of the stay petition and application for condonation of delay. The judgment highlighted the importance of establishing a clear nexus between input and output services for refund eligibility under the CENVAT Credit Rules 2004.