2018 (8) TMI 695 - AT - Service Tax

Refund of accumulated CENVAT Credit - Rule 5 of Cenvat Credit Rules, 2004 read with notification - refund rejected on the ground that the activity of the appellant does not amount to export of services - Held that - The activity of the appellant amounts to export of service - matter remanded back to the file of the Assistant Commissioner /Deputy Commissioner for consideration of their refund in accordance with law - appeal allowed by way of remand.

Summary

Issues:
Claim of refund under Rule 5 of Cenvat Credit Rules, 2004 read with notification.

Analysis:
The appellant, a service provider under Business Auxiliary Services, filed refund claims for the period April 2009 to January 2010, totaling ?56,25,748. The claim was rejected by the Assistant Commissioner, stating that the activity did not amount to export of services. The appellant appealed to the Commissioner (Appeals) against this decision.

While the appeal was pending, another show cause notice was issued for the period 2007-2008 to 2009-2010, demanding service tax from the appellant, alleging that their activity did not result in export of service. The Commissioner, relying on a Tribunal ruling, held that the appellant's activity did amount to export of service and dropped the demand.

Subsequently, the Commissioner (Appeals) upheld the rejection of the refund claim in an order-in-appeal dated 23.07.2014. The appellant then filed an appeal before the Tribunal, arguing that the issue of export of services was settled by the Commissioner's order dated 30.01.2014 and the Tribunal ruling.

The Tribunal, after considering the arguments, held that the activity of the appellant did amount to export of service. The impugned order was set aside, and the matter was remanded back to the Assistant Commissioner/Deputy Commissioner for the consideration of the refund. The court was directed to adjudicate the quantum of refund and grant it within 60 days from the date of receipt of the Tribunal's order. The appellant was instructed to appear before the adjudicating authority with a copy of the order for further proceedings.