2012 (8) TMI 243 - AT - Service Tax

Refund Exemption of service tax paid by them under Notification No. 09/2009 as amended by Notification No. 15/2009 - Held that - Adjudicating authority denied the refund claim on the ground they are not entitled to claim refund prior to the period, on which date they got the approval from the concerned authority - remanded the matter to the adjudicating authority to consider the claim filed by the respondent to examine whether the respondent has fulfilled the other conditions of the above said notifications or not

Summary

Issues:
1. Entitlement to claim refund of service tax under specific notifications.
2. Power of Commissioner (Appeals) to remand the matter to the adjudicating authority in service tax cases.

Entitlement to Claim Refund of Service Tax:
The appellant, a unit in SEZ, sought exemption of service tax under specific notifications by way of refund. The adjudicating authority initially denied the refund claim, citing lack of approval from the competent authority for the period in question. The Commissioner (Appeals) ruled that the date of application before the competent authority for claiming the refund should be considered as the date for claiming refund. While allowing the appeal on this ground, the Commissioner remanded the matter to the adjudicating authority to verify compliance with other conditions of the notifications. The Revenue challenged this decision, arguing that the Commissioner (Appeals) had no power to remand the matter under relevant statutory provisions. The Tribunal, after examining the impugned order and adjudication order, found no fault with the Commissioner's decision. It upheld the order, directing the adjudicating authority to finalize the matter within 30 days of the Tribunal's directive.

Power of Commissioner (Appeals) to Remand the Matter:
The key contention in this issue was whether the Commissioner (Appeals) had the authority to remand the matter to the adjudicating authority in service tax cases. The Tribunal analyzed the provisions of the Central Excise Act, 1944, as applicable to Service Tax cases under the Finance Act, 1994. It observed that the Commissioner (Appeals) had appropriately exercised the power to decide the issue on its merits while leaving other aspects open for the adjudicating authority's consideration. The Tribunal found no legal flaw in the Commissioner's decision to remand the matter for further examination of compliance with the notifications' conditions. Consequently, the Tribunal dismissed the Revenue's challenge on this ground and upheld the Commissioner's ruling, emphasizing the need for the adjudicating authority to promptly resolve the matter post the Tribunal's directive.

In conclusion, the Tribunal's judgment addressed the issues of entitlement to claim refund of service tax under specific notifications and the power of the Commissioner (Appeals) to remand matters in service tax cases. The decision clarified the criteria for claiming refunds, the role of the appellate authority in remanding cases, and set a timeline for the adjudicating authority to conclude the matter.