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TMI Blog2009 (7) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner (Appeals) from the above angle. – Matter remanded - E/780-783/2009 - A/1617-1621/2009-WZB/AHD, - Dated:- 28-7-2009 - Ms. Archana Wadhwa, Member (J) Cross Objection No. E/CO/45/2009 Shri Sameer Chitkara, SDR, for the Appellant. Shri W. Christian, Advocate, for the Respondent. [Order]. - Being aggrieved with the order passed by the Commissioner (Appeals), Revenue has filed the present. I have heard Shri Sameer Chitkara, learned SDR for the Revenue and Shri W. Christian, learned Advocate appearing for the assessee. 2. As per facts on record, the respondent is a 100% EOU engaged in the manufacture of excisable goods. They have filed refund claims of Rs. 55,722/- for the period July, 2006 to September, 2006 in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence nor does it require examination of factual position other than those examined at the adjudicating stage and therefore the same can be raised at the appellate stage. The Hon'ble CESTAT in the case of Extrusion Processes Ltd. Collr. of C.E., Bombay-II reported in 1994 (69) E.L.T. 144 (Tribunal) observed that: "It is true that certain issues of law could be raised even at the appellate stage, even though the same were not raised at the adjudication stage. Such issues however should be pure questions of law, and which could be determined on the set of facts already available on record. Even if the issue is one of law, but if it calls for adducing additional evidence, and requires examination of factual position, other than the one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce' means any service: (i) used by provider of taxable service for providing an input service, or (ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final product and clearance of the final products up to the place of removal and includes services used in relation to .... Inward transportation of inputs or capital goods and outward transportation up to the place of removal. 3.4 From the above, it is clear that the credit of input service tax paid is allowed under Rule 3 of Cenvat Credit Rules, 2004, only if inter alia the inputs services tax paid qualifies as input services. In the present case, the input service involving services like agency services, commission agent services, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacture of final product. Allowing refund of credit related such services, under Rule 5 of Cenvat Credit Rules, 2004 would be outside the scope of Rule 5 of the Cenvat Credit Rules, 2004 and, therefore, inadmissible. 3.6 It was necessary for Commissioner (Appeals) before granting the refund in the present case, to consider the Department's view firstly on the issue of dmissibility of subject credit and secondly on the issue of admissibility of refund of subject credit which he has failed to do, on the plea of new grounds, which do not appear to be legal and proper. 3.7 Besides the view taken by Commissioner (Appeals) is not acceptable on the ground that if the logic given by him is accepted the very purpose of provisions for revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services' and in terms of Rule 5 which grants refund of such Cenvat credit. He also relied upon the Larger Bench decision of the Tribunal in case of M/s. ABB Ltd. v. CCE as reported in 2009 (15) S.T.R. 23 (Tribunal-LB) = 2009 (92) RLT 665 (CESTAT-L.B.) 5. Without expressing my opinion as to whether the definition of 'input service' and the claim of refund of excess Cenvat credit in terms of Rule 5 would notify two different interpretations of 'input services', I agree with the Revenue that the matter has not been examined by the Commissioner (Appeals) from the above angle. 6. As such, I set aside the impugned order and remand the matter to the appellate authority for passing a fresh order after considering the disputed issue. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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