2017 (10) TMI 1232 - AT - Service Tax

Rectification of mistake - the additional grounds raised by the applicant in his application dt. 19/03/2015 were not considered by this Tribunal while deciding the appeal of the appellant - Held that - Tribunal while disposing of the case of the applicant vide its order dt. 16/12/2016 has not considered these additional grounds which were raised by the applicant by filing miscellaneous application on 19/03/2015 - as per Rule 6(5) of the CCR, 2004 all these services have been specifically been covered in the said rule and all these services have been rendered in connection with taxable services as well as exempted services and therefore they are entitled to 100% credit of the refund in terms of Rule 6(5) of the CCR, 2004. The Final order is amended to the extent that the original authority will also consider these findings while deciding the refund claim of the applicant - ROM application allowed.

Issues:
Rectification of mistake in the Final Order regarding refund of unutilised CENVAT credit for specific services.

Analysis:
The applicant sought rectification of a mistake in the Final Order passed by the Tribunal related to the refund of unutilised CENVAT credit amounting to ?35,05,347 for the period January 2007 to June 2007. The applicant claimed that the Tribunal did not consider the grounds raised in a miscellaneous application regarding the eligibility of 100% CENVAT credit refund for various services under Rule 6(5) of the CENVAT Credit Rules, 2004. The applicant argued that services like architect service, management consultant service, real estate agent service, security agency service, banking service, and erection, commissioning, or installation service were entitled to 100% credit refund under the said rule, which the original authority and the Commissioner (Appeals) had disallowed based on a proportionate formula from a notification. The applicant contended that these services were used for providing both taxable and exempted services, making them eligible for full credit refund as per Rule 6(5).

The Tribunal heard both parties and reviewed the case records. The appellant's counsel argued that the Tribunal failed to consider the additional grounds raised in the application, emphasizing that all the disputed input services were eligible for 100% CENVAT credit under Rule 6(5) of the CENVAT Credit Rules, 2004. The learned counsel highlighted that the services in question were utilized for both taxable and exempted services, meeting the criteria for full credit refund under the rule.

On the other hand, the learned Authorized Representative (AR) contended that there was no apparent error in the Final Order, as the Tribunal had only remanded the matter to the original authority. The AR argued that the rectification application was being used to seek a decision on the merits, which was beyond the scope of rectification.

After evaluating the submissions and the case records, the Tribunal found that it had not considered the additional grounds raised by the applicant in the miscellaneous application. Referring to Rule 6(5) of the CENVAT Credit Rules, 2004, the Tribunal noted that the disputed services were explicitly covered under the rule and were used for both taxable and exempted services, entitling them to a 100% credit refund. The Tribunal also cited a previous judgment to support the decision to rectify the mistake and allow the applicant's claim for refund. Consequently, the Final Order was amended to direct the original authority to consider the eligibility of the services for full credit refund as per Rule 6(5) while deciding the refund claim.

In conclusion, the Tribunal allowed the rectification application, acknowledging the mistake in not considering the submissions raised by the applicant. The Final Order was amended to include specific directions for the original authority to consider the eligibility of the input services for a 100% CENVAT credit refund under Rule 6(5) of the CENVAT Credit Rules, 2004.

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