2012 (10) TMI 296 - AT - Service Tax

Power of remand - Commissioner (Appeals) - refund Held that - Original authority sanctioned refund of the service tax paid on some of the input services which were found to have nexus with the output service - assessee approached the Commissioner (Appeals) and the latter found nexus between the input services (barring Air Travel Agency Service) and the output service exported by the party - matter was sent back to the original authority for quantification of the amount for refund in respect of the input services which were found to have nexus with the output service - this was not a remand

Summary

Issues:
- Power of remand by the Commissioner (Appeals)
- Admissibility of refund claim under Rule 5 of the CENVAT Credit Rules, 2004

Analysis:

The appeal before the Appellate Tribunal CESTAT Bangalore concerned the power of remand by the Commissioner (Appeals) and the admissibility of a refund claim under Rule 5 of the CENVAT Credit Rules, 2004. The department appealed against an order of the Commissioner (Appeals) that held a refund claim to be admissible to the respondent, directing the lower authority to quantify the refund amount. The department contended that the Commissioner (Appeals) lacked the power of remand, citing a Supreme Court judgment in MIL India Ltd. v. CCE, Noida. The appellant argued that the appellate Commissioner's order was not a remand but a direction for quantification of the refund amount.

Upon review, the Tribunal found merit in the appellant's submission. The respondent had sought a refund of unutilized CENVAT credit for service tax paid on input services used for exporting Information Technology Support Service. The original authority granted refund for some input services with nexus to the output service but denied refund for others lacking such nexus. The Commissioner (Appeals) identified nexus for most input services except Air Travel Agency Service and instructed the original authority to quantify the refund amount for the related input services. The Tribunal concluded that this action did not constitute a remand, as a substantive finding was made by the appellate authority, and the matter was referred back solely for quantification purposes.

In light of the above analysis, the Tribunal dismissed the appeal by the Revenue, as the sole ground raised was deemed untenable. The decision also included the dismissal of the stay application.