2018 (10) TMI 1210 - AT - Service Tax

Refund claim - Rule 5 of Cenvat Credit Rules 2004 read with N/N. 27/2012 dated 18.06.2012 - rejection of refund on the ground that the services of the appellant relating to Sales and Marketing in respect of the products owned by their principal in India fall in the definition of intermediary service - principles of Natural Justice - Held that - The impugned order has been passed without giving proper reasons and without considering the facts involved in the case - the Commissioner (Appeals) has only given general principles for granting the refund without adverting to the facts of the present case - also, the impugned order has been passed without affording an opportunity of hearing. The impugned order which is passed in complete violation of the principles of natural justice and without considering the facts and the grounds of appeal is liable to be set aside - case remanded back to the Commissioner (Appeals) to pass a De novo order after considering the facts and the grounds of appeal and after affording an opportunity of hearing to the appellant - appeal allowed by way of remand.

Summary

Issues:
Appeal against remanded order for fresh adjudication by Commissioner (Appeals) regarding refund claims for specific periods.

Analysis:
The judgment involves two appeals against a common impugned order passed by the Commissioner (Appeals), remanding the matter for fresh adjudication by the original authority. The appeals concern refund claims for different periods, with specific amounts claimed and rejected. The appellant, a subsidiary of a US company, provides software development and marketing services. The appellant filed refund claims under Cenvat Credit Rules 2004, which were partially sanctioned by the original authority. The appeal for the remaining refund was rejected on the grounds that the services provided by the appellant were deemed as 'intermediary services'. The appellant challenged the impugned order, arguing that it lacked legal sustainability, was non-speaking, violated natural justice principles, and failed to consider the facts and grounds of appeal. The appellant cited various court decisions to support their arguments.

The appellant contended that the impugned order did not align with the facts of the case or legal precedents. They argued that the order was non-speaking, lacked reasoning, and did not reference the Order-in-Original or the appellant's facts adequately. The appellant claimed that the order exceeded the scope of the show-cause notice and provided generic guidelines instead of specific reasons. Additionally, the appellant argued that the order was passed without affording a personal hearing, violating natural justice principles. The appellant relied on several court decisions to support these contentions.

The learned counsel for the appellant highlighted that the impugned order was passed without proper reasoning, failed to consider the case's specifics, and did not provide an opportunity for a personal hearing. After considering the submissions and the material on record, the Tribunal found that the impugned order lacked proper reasoning, did not address the case's facts, and was passed without a hearing. The Tribunal agreed with the appellant's arguments regarding the violation of natural justice principles and the failure to consider the grounds of appeal. Consequently, the Tribunal set aside the impugned order and remanded the case back to the Commissioner (Appeals) for a fresh adjudication. The Commissioner (Appeals) was directed to consider the facts, grounds of appeal, and provide a hearing to the appellant within three months from the date of the order.

In conclusion, both appeals were disposed of by way of remand, and the operative portion of the order was pronounced in open court on a specified date.