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TMI Blog2023 (9) TMI 1256X X X X Extracts X X X X X X X X Extracts X X X X ..... eously rejected the appeal mainly considering these two (2) issues only and did not give any finding remaining four (4) issues which were contested before him in this appeal filed by the appellant. The present case needs to be remanded back to the Ld. Commissioner (Appeals) to decide the remaining four issues on which appeal was filed by the appellant before him - Appeal allowed by way of remand. - Mr. S. S. GARG, MEMBER (JUDICIAL) Shri Nikhil Gupta, Advocate for the Appellant Shri Aneesh Dewan, DR for the Respondent ORDER The present appeal is directed against the impugned order dated 23.12.2012 passed by the Commissioner (Appeals) whereby the Ld. Commissioner (Appeals) has rejected the appeal of the appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it filed quarterly refund claims as per Rule 5 of the Cenvat Credit Rules, 2004 and the procedure laid down in Notification no. 5/2006-Central Excise (NT) dated 14.03.2006. The Appellant filed a refund claim for the period April 2007 to June 2007 on 26.02.2008 amounting to Rs. 8,45,265/-. On preliminary verification of the refund claim, the Assistant Commissioner vide provisional order dated 28.04.2008 held that the Appellant fulfils the conditions of circular no. 828/5/2006 dated 20.04.2006 and allowed ad-hoc refund of Rs. 6,76,212 i.e., 80% of the total amount of refund claimed by the appellant. Subsequently, without consideration of the Initial Order, a Show Cause Notice was issued by the Ld. Joint Commissioner to the Appellant dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued by both the Hyderabad and Gurgaon unit. The appellant filed a reply to the show cause notice and after following the due process, the Ld. Joint Commissioner vide Order-in-Original dated 30.09.2010 rejected the refund claim and also confirmed the demand of Rs. 6,76,212/- which was already refunded to the Appellant. Further, a penalty of Rs. 6,76,212/- also imposed on the appellant under Section 78 of the Act. However, the Ld. Joint Commissioner vide its Order dated 30.09.2010 had decided two (2) issues out of the six (6) issues cited (supra) in favour of the Appellant, namely, discrepancy in the name of the remitter (McGraw Hill Companies Inc.) in the FIRCs (issue v) and difference of Cenvat credit (issue iv). Aggrieved by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allenge the same in the present appeal filed before the Ld. Commissioner (Appeals). He further submitted that rejecting the refund claim on the issues that were not even in dispute and were already accepted earlier by the Revenue/Department is illegal. He further submits that the Ld. Commissioner (Appeals) did not give any finding on issues No. I, II, III and VI cited (supra) which were specifically raised before him. The Ld. Counsel further submits that Rule 3(1)(iii) of the Export of Service Rules prescribe certain conditions thereunder for it to qualify as an export of service and the Ld. Commissioner Appeals (Hyderabad) has settled the same issue in the Appellant's own case for the period April 2007-June 2007. 5. On the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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