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TMI Blog2016 (6) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... fail to evince nexus between the applicant and the services claimed to have been used. It must also be noticed that the first appellate authority is not empowered to remand matters to the original authority under section 35A of the Central Excise Act, 1994. Therefore, the impugned order is set aside as lacking legally and propriety. The findings of the original authority that the applicant is not eligible for refund, owing to non-compliance with the period prescribed for making such applications and the inability of the claimant to evince utilization of eligible services, is sustained. - Decided in favour of revenue - APPEAL NO. ST/752/2012, CROSS-OBJECTION NO: ST/CO-91011/2013 - Order No. A/87411-87412/16/SMB - Dated:- 8-12-2015 - Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and as some of services had been utilized at port of discharge. M/s Shantadurga Transport Pvt Ltd submitted the documentation sought which, consequent to scrutiny, led to issue of addendum on 16th March 2011 pointing out that claim for ₹ 1,29,280/- was also liable to be rejected as it pertained to hiring of shore mobile crane and that the entire claim was, further, liable to be rejected as the invoices submitted as evidence of utilization of services was not in the name of the applicant. Additional objection to that portion of the claim pertaining to the first two shipments was issued as addendum on 29th July 2011 for having been submitted after lapse of one year from the date of export. Each of these addenda afforded a further oppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. It is contended in the appeal that notices were issued and opportunities afforded to the applicant to present their case before the original authority. It was argued that the impugned order had discountenanced two key issues governing refund of tax limitation and identity of tax-payer in restricting the scope of re-adjudication by the lower authority. 6. The learned Authorised Representative has drawn attention to the decision of the Tribunal in TC Terrytex Ltd v. Commissioner of Central Excise, Chandigarh II [2015-TIOL-1345-CESTAT-DEL] in which it has been held: 4. In the light of the concurrent finding of facts recorded by the authorities below, the claim by the appellant reiterated before this Tribunal, that the invoices subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absence of the name of the applicant on the various documents evincing payment of tax was sought to be justified on behalf of the respondent by elaboration of practices relating to leasing of space for storage of export goods and the contention that Foreign Trade Policy allowed third party exports. Undoubtedly, third party exports are permissible and I find no reason to discount the claim that the exporter had indeed made use of the premises belonging to M/s MME Exports. However, the provisions of the relevant exemption notification require submission of proof that the specified services had indeed been received by the exporter claiming refund of the tax paid. In the instant case, the documents evince that services were rendered to M/s MME ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd that had opted not to exercise the right to counter the addendum/corrigendum despite being placed on notice. 10. It must also be noticed that the first appellate authority is not empowered to remand matters to the original authority under section 35A of the Central Excise Act, 1994. 11. In view of the above reasons, the impugned order is set aside as lacking legally and propriety. The findings of the original authority that the applicant is not eligible for refund, owing to non-compliance with the period prescribed for making such applications and the inability of the claimant to evince utilization of eligible services, is sustained. Cross-objection of M/s Shantadurga Transport Pvt Ltd is also is also disposed off. ( Pronounce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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