2016 (9) TMI 587 - AT - Service Tax

Refund claim - Cenvat Credit of tax paid on various input services in terms of Rule 5 of the Cenvat Credit Rules 2004 read with notification no. 5/2006-CE(NT) dated 14.03.2006 - services rendered by assessee amounts to export of services or not - Held that - the Appellate Authority is not disputing the fact that the Tribunal s decision in the same assessee s case has held that the services rendered by them are required to be held as export of services, in which case the refund would be admissible to them. However, the Commissioner (A) has not followed the said decision of the Tribunal on the sole ground that the same has not been accepted by the Revenue and appeal there against stanad admitted by the Hon ble Supreme Court. It is also a fact that there is no stay of operation of Tribunal s decision by the Hon ble Supreme Court and mere admission of the appeal filed by the Revenue cannot be adopted as a ground for non following of the Tribunal s decision. In as much as the Tribunal has already decided the issue in favour of the assessee, I find no reason to take a view different than the one taken by the Tribunal. - Decided in favour of appellant

Issues:
1. Rejection of refund claim on the grounds of services not amounting to export of services.
2. Commissioner (A) remanding the matter for re-examination in light of a specific Tribunal's order.
3. Adjudicating authority allowing the refund claim.
4. Revenue appealing against the order of the adjudicating authority.
5. Commissioner (A) setting aside the order of the Assistant Commissioner based on pending Supreme Court appeal.
6. Dispute regarding the acceptance of Tribunal's decision in the same assessee's case.
7. Tribunal's decision in favor of the assessee and the need to follow it.

Analysis:
1. The appellant, engaged in providing taxable services under "Business Auxiliary Services," filed a refund claim of Cenvat Credit of tax paid on input services for exported output services. The claim was rejected by the Assistant Commissioner, primarily due to services not qualifying as export of services and other reasons related to document production.

2. On appeal, the Commissioner (A) acknowledged the timely filing of the refund claim and remanded the matter to re-examine if the services rendered amounted to export of services, referencing a specific Tribunal's order for guidance.

3. Upon re-adjudication, the original adjudicating authority declared the refund admissible to the appellant, allowing it to the extent of a specified amount.

4. The Revenue, aggrieved by the adjudicating authority's decision, filed an appeal before Commissioner (A) on various grounds, leading to the assessee submitting a cross-objection citing the Tribunal's decision in their case.

5. Commissioner (A) set aside the Assistant Commissioner's order, considering the pending Supreme Court appeal by the Revenue challenging a previous order in favor of the appellant. The Commissioner emphasized the binding nature of the Tribunal's decision on lower authorities.

6. The Appellate Authority highlighted the dispute over accepting the Tribunal's decision in the same assessee's case, noting the absence of a stay on the Tribunal's decision despite the Revenue's appeal being admitted by the Supreme Court.

7. Ultimately, the Appellate Authority upheld the Tribunal's decision in favor of the assessee, emphasizing the need to follow the Tribunal's decision and setting aside the impugned order, granting the appeal with consequential relief to the appellant.

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