2012 (5) TMI 264 - AT - Service Tax

Stay - refund - unutilized CENVAT Credit - export of output services Held that - Commissioner of Service Tax (Appeals) is not empowered to make an order of remand under subsection (5) of 85 of the Finance Act, 1994 as held by the Tribunal in the case of Orient Crafts Ltd. (2010 - TMI - 203514 - CESTAT, DELHI - Service Tax). orders of the Commissioner (Appeals) set aside, reason found by the Commissioner (Appeals) for directing the lower authority to reexamine the issue of nexus between the output services and the services claimed to be input services cannot be faulted. Matter remanded to original authority for fresh decision and, depending on such decision, re-quantification of refund. stay applications also stand disposed of

Summary

Issues:
1. Stay applications filed by the department seeking stay of operation of impugned orders passed by the Commissioner of Service Tax.
2. Refund claims of unutilized CENVAT Credit availed on 'input services' used in export of 'output services'.
3. Claim for rebate under Notification No.12/2005-ST by M/s. e4e Business Solutions Pvt. Ltd.
4. Validity of orders passed by the Commissioner (Appeals) and the power of remand.
5. Whether the Commissioner (Appeals) has the power to remand cases.

Analysis:

1. The department filed stay applications seeking to stay the operation of impugned orders passed by the Commissioner of Service Tax. The Tribunal rejected the stay applications and proceeded to deal with the appeals finally at that stage.

2. Respondents filed refund claims for unutilized CENVAT Credit on 'input services' used in export of 'output services'. The original authority rejected some claims, partly granted others, and required re-quantification based on Chartered Accountant's certificates. The Tribunal directed the original authority to re-quantify refund claims in light of Chartered Accountant's certificates, allowing claimants to establish nexus between input and output services.

3. M/s. e4e Business Solutions Pvt. Ltd. filed a claim for rebate under Notification No.12/2005-ST. The original authority rejected the claim, but the appellate authority allowed it subject to producing a Chartered Accountant's certificate supporting the declared claim.

4. The Tribunal considered the grounds of the Revenue's appeals challenging the orders passed by the Commissioner (Appeals). The Revenue contended that the orders were without jurisdiction due to the absence of the power of remand. Citing relevant judgments, the Revenue argued for setting aside the impugned orders and remanding the matters for fresh decision.

5. The Tribunal examined whether the Commissioner (Appeals) had the power to remand cases. Respondents argued that the impugned orders were not remand orders but required re-quantification. The Tribunal found consensus in the first category of cases that the Commissioner (Appeals) allowed refunds in principle, and directed the original authority to re-quantify based on Chartered Accountant's certificates.

6. The Tribunal found that orders directing the lower authority to examine the nexus issue were essentially remand orders. While setting aside these orders, the Tribunal remanded the issue to the original authority for fresh decision and re-quantification of refund, emphasizing the need for Chartered Accountant's certificate.

7. All appeals were disposed of with a direction to the original authorities to process refund/rebate claims as per the Tribunal's order, providing claimants with a reasonable opportunity to present evidence and be heard. Stay applications were also disposed of.