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2023 (10) TMI 597 - AT - Service TaxRefund claim - appellants had not commenced authorized operation of manufacture - services received can be considered as wholly consumed for the authorised operation within the SEZ unit or not - HELD THAT - From the order of the Commissioner (Appeals) it can be seen that the Commissioner (Appeals) has the remanded the matter with direction to reexamine the claim and to pass a speaking and reasoned order following the principle of natural justice. It was also directed to the respondent to produce the relevant evidence/documents, therefore, it is clear that the Adjudicating Authority has to examine the refund as whole. As regard the issue whether the Commissioner (Appeals) has power to remand back the matter to the original authority, the issue is no longer res - integra as held by the Hon ble Jurisdictional High Court in the case of COMMISSIONER OF SERVICE TAX VERSUS VERSUS ASSOCIATED HOTELS LIMITED 2014 (4) TMI 406 - GUJARAT HIGH COURT in which the support was taken from the Hon ble Supreme Court Judgment in the case of MIL INDIA LTD. VERSUS COMMISSIONER OF C. EX., NOIDA 2007 (3) TMI 8 - SUPREME COURT . Therefore, in view of the settled legal position on this issue the remand made by the learned Commissioner (Appeals) is legal and proper. There are no infirmity in the impugned order. Hence, the same is upheld - appeal of revenue dismissed.
Issues involved:
The issues involved in the judgment are related to the rejection of a refund claim by the Adjudicating Authority, the remand of the matter by the Commissioner (Appeals), and the power of the Commissioner (Appeals) to remand the matter back to the Adjudicating Authority. Rejection of Refund Claim: The respondent, a functional unit under Pharmez registered with the Office of the Development Commissioner, KASEZ, Ministry of Commerce, Gandhidham, filed a refund claim of Rs. 53,63,640/- under Notification No 17/2011-ST dated 01.03.2011 for the period 01.07.2011 to 31.12.2011. The claim was rejected by the Adjudicating Authority on grounds including non-commencement of authorized manufacturing activities in the SEZ unit, discrepancy in services received before commencement of production, and lack of clarity on services related to authorized operations within the SEZ. The Commissioner (Appeals) remanded the matter back to the Adjudicating Authority for a speaking order. The respondent argued that the Commissioner (Appeals) had the power to remand the matter, and the order was based on a detailed examination of submitted documents. Power of Commissioner (Appeals) to Remand: The Commissioner (Appeals) remanded the matter based on a lack of submitted documents for verification and in accordance with principles of natural justice. The order cited precedents where remand for fresh adjudication was deemed appropriate in cases where the original order lacked due process. The order referred to a judgment in the case of Singh Alloys (P) Ltd. and a ruling by the Hon'ble Tribunal, Ahmedabad in the case of Associated Hotels Ltd., supporting the power of remand in certain circumstances. The Commissioner (Appeals) directed the Adjudicating Authority to reexamine the claim and produce relevant evidence/documents. The judgment highlighted that the issue of the Commissioner (Appeals) having the power to remand was settled law, citing a case involving Associated Hotels Limited and a Supreme Court judgment in the case of MIL India Limited Vs CCE, Noida. The Tribunal upheld the remand made by the Commissioner (Appeals) as legal and proper, dismissing the revenue's appeal.
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