2017 (6) TMI 226 - AT - Service Tax

Refund claim of CENVAT credit - denial on the ground that the appellants have exported the goods availing the draw back and the same should have been exported without availing the drawback because the benefit of N/N. 33/2008-ST was not available retrospectively - denial also on the ground that the appellants did not submit proper documents like invoices, copy of the agreement as entered by the exporters with the buyers and that the evidence related to non-availment of Cenvat Credit was not submitted - Held that - the services which have been received by the appellant after the manufacture of goods are not to be included while calculating the drawback claim - the order of the Ld. Commissioner (Appeals) is not a reasoned order and is, in fact, completely non-speaking order. The matter is remanded back to the Ld. Commissioner (Appeals) to pass a fresh order after duly considering the submissions and documentation, which the appellants submits before the Ld. Commissioner (Appeals) - appeal allowed by way of remand.

Summary

Issues:
Refund claims rejection based on drawback availed and lack of proper documentation under Notification No. 41/2007-ST.

Analysis:
The appellants appealed against the rejection of their refund claims before December 2008, citing two main objections by the Revenue. Firstly, the Revenue contended that the goods were exported while availing the drawback, which was not available retrospectively under Notification No. 33/2008-ST. Secondly, the appellants were criticized for not submitting essential documents like invoices, agreements with buyers, and evidence of non-availment of Cenvat Credit under Notification No. 41/2007-ST. The Advocate for the appellant argued that the interpretation of availing drawback on specified services was incorrect, citing the definition of drawback under Customs Excise drawback Rules and relying on a previous Tribunal judgment. He also highlighted the lack of reasoning in the rejection order by the Ld. Commissioner (Appeals) regarding the submitted agreements and testing requirements. The Revenue's representative emphasized the deficiency in documentation as the reason for rejection, urging that the Ld. Commissioner (Appeals) failed to provide findings on the merits.

Upon examination, the Tribunal found the Ld. Commissioner (Appeals) order to be non-speaking, especially concerning the drawback issue. It was clarified that services received post-manufacturing should not be included in calculating the drawback claim. The Tribunal noted that the Ld. Commissioner (Appeals) had ignored crucial submissions, including the written agreement, and failed to provide findings on various grounds raised by the appellants. Consequently, the Tribunal deemed the Ld. Commissioner (Appeals) order as non-reasoned and non-speaking. In the interest of justice, the matter was remanded back to the Ld. Commissioner (Appeals) for a fresh order, instructing the appellants to submit all required documentation, including invoices, agreements, evidence of non-availment of Cenvat Credit, as per the Service Tax Rules and Notification No. 41/2007-ST. The appellants were granted a fair opportunity to present their case, and the appeals were disposed of by way of remand.