2017 (9) TMI 1496 - AT - Service Tax

Power of remand - Refund claim - unjust enrichment - Board s Circular No.120/1/2010 dated 19.01.2010 - Held that - Commissioner (A) has the power of remand under section 985(4) of the Finance Act 94 - reliance placed in the case of COMMISSIONER OF SERVICE TAX, DELHI Versus WORLD VISION 2009 (11) TMI 452 - CESTAT, NEW DELHI , where it was held that Sub section (4) of Section 85 corresponds to Excise section 35A(3) language of two provisions different. Section 85(5) is only about procedural aspects and not to be interpreted to restrict powers of Commissioner (Appeals) under section 85(4) - appeal dismissed - decided against Revenue.

Summary

Issues:
- Eligibility of refund claim subject to CA certificate
- Power of Commissioner (A) to remand the matter
- Compliance with Board instructions and Finance Act amendments
- Consequential benefit of rejected services subject to CA certificate

Eligibility of refund claim subject to CA certificate:
The appeals were filed by the Revenue against an order remanding the matter to decide the eligibility of a refund claim subject to a Chartered Accountant (CA) certificate. The Respondent had filed a refund claim for unutilized CENVAT credit on input services used in exporting output services. The original authority partially sanctioned the refund but rejected the remaining amount due to a lack of nexus between input and output services. The Commissioner (A) set aside the original orders and allowed the appeals with the condition of submitting a CA certificate for re-examination.

Power of Commissioner (A) to remand the matter:
The Revenue argued that the Commissioner (A) did not have the power to remand the case and should have modified the Order-in-Original instead. However, the Respondent contended that the direction given by the Commissioner (A) did not amount to remanding the case for fresh adjudication, as the Order-in-Appeal had already set aside the Order-in-Original. The Respondent cited various decisions supporting the Commissioner (A)'s power to remand under section 85(4) of the Finance Act 1994.

Compliance with Board instructions and Finance Act amendments:
The Revenue claimed that the impugned order by the Commissioner (A) contradicted Board instructions and amendments to the Finance Act, emphasizing the Commissioner (A)'s duty to pass a just and proper order after necessary inquiry. However, the Respondent argued that the Commissioner (A) had the authority to pass orders demanding service tax, interest, or penalty under section 85(4) of the Finance Act, with broader powers compared to the excise Act.

Consequential benefit of rejected services subject to CA certificate:
The Commissioner (A) upheld the impugned order, citing various decisions supporting the power of remand under section 85(4) of the Finance Act 1994. The appeals of the Revenue were dismissed, and the cross objections were disposed of accordingly, affirming the requirement of a CA certificate for the eligibility of refund claims.