2011 (11) TMI 527 - AT - Service Tax

Application for stay - rejection of certain refund claims - Rule 5 of the CENVAT Credit Rules, 2004 claiming refund of unutilized CENVAT credit on input services which were claimed to have been utilized for export of output services - Held that the matters require to be sent back to the learned Commissioner (Appeals) for fresh decision, for which we have more reasons than one. Firstly, there is a glaring contradiction between the findings recorded by the Commissioner (Appeals) on the substantive issue and his decision to remand the case to the lower authority. On the one hand, in respect of the input services, clear findings were recorded to the effect that these services were essential, or integrally connected with, or having direct nexus to, the output services exported by the respondents. On the other hand, it was observed that the question of nexus needed to be considered afresh by the lower authority on the basis of relevant evidence to be produced by them - Decided in favor of the assessee by way of remand to Commissioner (A)

Summary

Issues:
- Appeal against rejection of refund claims under Rule 5 of CENVAT Credit Rules, 2004.
- Authority's rejection of refund claim due to lack of nexus between input and output services.
- Commissioner (Appeals) remanding cases for re-quantification based on Chartered Accountant's certificates.
- Challenge to Commissioner (Appeals) decision on grounds of lack of authority for remand and contrary findings to Tribunal's decisions.

Analysis:
1. The appeals were filed by the department against rejection of refund claims under Rule 5 of the CENVAT Credit Rules, 2004, due to the alleged lack of nexus between input and output services utilized for export. The Commissioner (Appeals) remanded the cases for re-quantification based on Chartered Accountant's certificates, as per Board's circular, to establish the required nexus with documentary evidence.

2. The department challenged the Commissioner (Appeals) decision, arguing that he lacked the authority to remand the cases. The department also contended that the findings were contrary to previous Tribunal decisions on similar issues. Citing relevant case laws, the department emphasized that no remand order could be passed by the Commissioner (Appeals) under sub-section (5) of Section 85 of the Finance Act, 1994.

3. In the absence of representation from some respondents, the arguments in support of the Commissioner (Appeals) orders were presented by others. The Tribunal decided to dispose of all appeals collectively, considering the circumstances of the case.

4. Upon reviewing the impugned orders, the Tribunal found significant contradictions and inconsistencies. The Commissioner (Appeals) had contradicted himself by acknowledging the essential nexus between input and output services while still remanding the cases for reconsideration. The Tribunal concluded that the Commissioner (Appeals) exceeded his authority by assuming the power of remand, especially in light of applicable judgments. Consequently, the Tribunal set aside the orders and remanded the cases for fresh consideration, emphasizing the need for a fair hearing for both parties.