2012 (8) TMI 406 - AT - Service Tax

Power of the Commissioner (Appeals) to remand 100% EOU - export of IT software - refund claim under Notification No. 5/2006 dated 14.3.2006 in respect of the unutilised credit accumulated due to export of services Commissioner (Appeals) allowed the refund of Cleaning activity, Security Agency, Courier charges, Repair & Maintenance, Cargo Handling, Commercial Training or coaching, Courier, Internet Telephone, Manpower Recruitment, Pager, Rent a cab operator, Telephone, Chartered Accountants, Clearing & Forwarding Agents, Outdoor catering except Air Travel Agent service - Held that - Order of the Commissioner (Appeals) is not a remand order and he has clearly held that the refund was available in respect of all services except Air Travel Agent service . Therefore, I do not find any merit in the submission that the Commissioner s (Appeals) order is a remand order. Appeal rejected.

Summary

Issues: Appeal against Order-in-Appeal for refund claim related to various services under Notification No. 5/2006-NT.

Analysis:
The appeal before the Appellate Tribunal CESTAT, Bangalore was filed by the department challenging the Order-in-Appeal No. 270/2010 dated 4.8.2010 passed by the Commissioner of Central Excise (Appeals-II), Bangalore. The respondents, a 100% E.O.U. engaged in providing Information Technology Software Service and Business Auxiliary Service, had paid service tax on services received under the category of Online Information and Data and other services as well. They filed a refund claim of Rs. 2,35,614/- for unutilized credit accumulated due to the export of services under Notification No. 5/2006-NT dated 14.3.2006, covering various services like cleaning activity service, security agency services, courier charges, repair & maintenance service, cargo handling service, and more.

The original authority rejected the claim stating that the input services claimed did not have a nexus with the services exported. However, on appeal, the Commissioner (Appeals) allowed the refund for all services except Air Travel Agent service. The Commissioner directed the original authority to grant consequential relief upon submission of a Chartered Accountant's certificate. The department challenged the Commissioner (Appeals) order, arguing that the Commissioner had no power of remand post the amendment to Section 35A (3) of the Central Excise Act, 1944. The respondent's consultant argued that the original authority had granted the refund as directed by the Commissioner (Appeals).

After considering the submissions and records, the Tribunal held that the Commissioner (Appeals) order was not a remand order, as he clearly stated the refund was available for all services except Air Travel Agent service. The Tribunal found no merit in the department's argument, stating that the decision of the Hon'ble Supreme Court in the case cited by the department did not apply to the present case. The Tribunal noted that the original authority had already implemented the Commissioner (Appeals) order. Consequently, the appeal was rejected, affirming the decision of the Commissioner (Appeals) regarding the refund claim for the various services under consideration.