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TMI Blog2018 (10) TMI 1279X X X X Extracts X X X X X X X X Extracts X X X X ..... en referred in tabular form, the disputed amount of refund claim was ₹ 2,86,171/- and ₹ 4,69,426/- respectively. Going by the ST-3 copy submitted, the total amount outstanding to the credit of the appellant was ₹ 10,19,895/- which indicates that after deducting the claim amount adjudicated upon in those two order-in-originals, the balance amount remaining is ₹ 2,64,298/-, which is also found reflected in the order-in-original dated 16.06.2015 in tabular form. Rejection of refund by the Commissioner (Appeals) solely on the ground that there was no clarity as to for which period such credit had been debited is not acceptable for the reason that by application of mind, such amount could have been ascertained even by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal, the ld. Counsel for the appellant submitted that for the same nature of services two consecutive orders of the adjudicating authorities pertaining to the subsequent period of service rendered by the appellant was held to be admissible and credit was accordingly permitted to be availed by the appellant. He also submitted that as it was a new company formed, some documents could not be produced by the appellant while making refund claim. However, in pointing out the deficiency note annexed to appeal memo vide Exhibit -3, ld. Counsel for the appellant submitted that cenvat credit ledger as well as ST-3 return for the period as sought for were produced before the original adjudicating authority along with bank statement in compliance to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the submission of ld. Counsel for the appellant and stated that no infirmity or illegality can be found from the order of the Commissioner (Appeals). He further submitted that in view of Notification no. 23 dated 18.06.2012 issued by the CBEC the amount that is claimed as refund under Rule 5 of the said Rules shall be debited by the claimant from the cenvat credit account at the time of making the claim, and the same was not done by the appellant for which the appeal filed by them is liable to be rejected. 5. Heard at length from both sides and gone through the case records. Before giving any finding on the penalty it is pertinent to reproduce the finding of the Commissioner (Appeals) made at para 6 6.1 of his order which reads as f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging and agreed to pay fees for such services. I find that the term service has been defined under Section 65(b) 44 of the Finance Act, 1994, according to which service means any activity carried out by a person for another for consideration, and includes a declared service. Therefore, I find that the appellant entered in to agreement with M/s Janoschka Kippenhelm GmbH, Germany for Design Service which is to be treated as export of service under Rule 6A of the Service Tax Rules, 1994 as the service receiver is located outside the India. The department vide OIO no. Refund/RKS/146/2015 dated 26.08.2015 has also held that the appellant is exporting Design Service other than Interior decoration and Fashion designing. 6. From his findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessarily a written one in a pre-defined format. It can be through oral agreement or written request made in letter correspondence. It can also be offer and acceptance communicated through emails. Therefore, rejection of refund claim on the ground that agreement copy has not been submitted is improper. Further Commissioner (Appeals) being empowered by Rule 35C of the Central Excise Act, which is equally applicable to service tax matter, is also empowered to make further enquiry and form an independent opinion and is not necessarily required to confine his views only on the order-in-original [ MIL India Ltd. vs. CCE 2007 (260) ELT 188 (SC)]. He had apparently exercised that power and even accepted the copy of the agreement executed between ..... X X X X Extracts X X X X X X X X Extracts X X X X
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