2013 (2) TMI 447 - AT - Service Tax

Refund claim - Service Tax on CHA for clearance of goods - Rule 5 of the CENVAT Credit Rules, 2004 - Notification No. 5/2006-CE (NT) dated 14.3.2006 - Bills are addressed to Mumbai HO - Held that - Commissioner (Appeals) does not deal with the issue regarding non-production of Inputs Service Distribution invoices from the head office of the respondent. Both sides seek remand of the order to the Commissioner (Appeals) for fresh consideration. As the Commissioner (Appeals) has not dealt with the ground on which the original authority had rejected the claim, it is deemed appropriate to accept the unanimous request of the both sides. Remand the matter to the Commissioner (Appeals) for fresh consideration.

Summary

Issues:

1. Refund claim under Notification No. 5/2006-CE (NT) dated 14.3.2006 for the period from July 2008 to September 2008.
2. Disallowance of service tax on CHA for clearance of finished goods at the place of removal.
3. Appeal against Order-in-Appeal No.100/2010 dated 07.5.2010 passed by the Commissioner of Customs (Appeals), Bangalore.

Analysis:

1. The respondent filed a refund claim of Rs. 2,66,809/- under Notification No. 5/2006-CE (NT) dated 14.3.2006 for the period from July 2008 to September 2008. The original authority sanctioned a refund of Rs. 2,26,253/- but disallowed a sum of Rs. 40,556/- related to service tax on CHA for clearance of finished goods at the place of removal. The disallowance was based on the non-production of Input Service Distribution invoices issued by the head office to enable credit on services billed at the head office, as required under Rule 4(2) of the Service Tax Rules. The original authority held that without these invoices, the claimant was not eligible for the refund of Rs. 40,556/- under Rule 5 of the CENVAT Credit Rules, 2004.

2. On appeal, the Commissioner (Appeals) allowed the appeal without addressing the issue of non-production of Input Service Distribution invoices from the respondent's head office. Both parties agreed that this issue was not considered in the impugned order. Consequently, both sides requested a remand of the order to the Commissioner (Appeals) for fresh consideration. In light of the failure to address the ground on which the original authority rejected the claim, the Tribunal deemed it appropriate to accept the unanimous request for remand. Therefore, the Tribunal set aside the impugned order and remanded the matter to the Commissioner (Appeals) for fresh consideration, ensuring a reasonable opportunity for both sides to be heard.

3. The appeal by the department was against the Order-in-Appeal No.100/2010 dated 07.5.2010 passed by the Commissioner of Customs (Appeals), Bangalore. The Tribunal heard both sides and noted the discrepancy in addressing the issue of non-production of necessary invoices in the appeal decision. Consequently, the Tribunal decided to remand the matter to the Commissioner (Appeals) for a fresh consideration of the refund claim, emphasizing the importance of addressing all relevant grounds for rejection in the decision-making process.