Custom, Excise & Service Tax Tribunal
Cst Bangalore vs Ingersoll Rand International India Ltd on 19 September, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Application(s) Involved: ST/CROSS/92/2011, ST/CROSS/95/2011, ST/CROSS/96/2011, ST/CROSS/97/2011 in ST/23/2011-SM, ST/24/2011-SM, ST/25/2011-SM, ST/26/2011-SM Appeal(s) Involved: ST/23/2011-SM, ST/24/2011-SM, ST/25/2011-SM, ST/26/2011-SM [Arising out of Order-in-Appeal No. 522 TO 525-2010 dated 29/09/2010 passed by , ] CST BANGALORE NO. 16/1, S.P. COMPLEX, LALBAGH ROAD, Appellant(s) Versus INGERSOLL RAND INTERNATIONAL INDIA LTD Respondent(s)
Appearance:
Ms. Kavitha Podwal, AR None For the Appellant For the Respondent Date of Hearing: 19/09/2017 Date of Decision: 19/09/2017 CORAM:
HON'BLE SHRI S.S. GARG, JUDICIAL MEMBER Final Order No. 22076-22079 / 2017 Per : S.S. GARG These four appeals have been filed by the Revenue against the common impugned order dated 29.09.2010, passed by the Commissioner (A) whereby the Commissioner (A) has remanded the matter to the original authority to decide the eligibility of refund claim subject to CA certificate.
2. The Respondent has also filed cross objections in all the four appeals filed by the revenue. Since the issue in all the four appeals is identical therefore all the four appeals are being disposed of through this common order. For the sake of convenience the facts of appeal No.24/2011 are taken.
3. Briefly the facts of the case are:
3.1 M/s. Ingersoll Rand International India Ltd., Bangalore are registered under various categories of services viz., Consulting Engineer, Maintenance or Repair, Erection, Commissioning and Installation & Management Consultancy services and are engaged in export of Consulting Engineering and Business Auxiliary services.
3.2 They have filed refund claim for Rs. 31,33,050/- for the period 07.2008 to 09.2008 in respect of un-utilised CENVAT credit on the input services said to have been used by them in the export of output services under Rule 5 of Cenvat Credit Rules, 2004 read with Notification No.5/06-CE NT dated 14.03.2006.
3.3 They were issued with show cause notice as to why their refund claim should not be rejected on the grounds that there is no nexus between input and output services, not clear that services provided from India and received from India and received outside India and for not furnishing of certain documents viz., FIRCs, EOU certificate, ST-3 returns etc. 3.4 The adjudicating authority vide OIO No.369/2009 dated 30.09.2009 had partially sanctioned refund of Rs. 66,443/- in respect of input services viz., Telecommunication & Maintenance or Repair services and rejected the remaining amount of Rs. 30,66,607/- in respect of other input services as there is no nexus.
3.5 Aggrieved, the assessee filed four appeals before Commissioner (A-II), who vide OIA Nos. 522 to 525/2010 dated 29.09.2010 has set aside all the four OIOs and allowed the appeal with consequential benefit of refund with a direction to the lower authority to re-examine the rejected services for consideration of eligibility of refund claim subject to submission of Chartered Accountant certificate in terms of Boards Circular No.120/1/2010 dated 19.01.2010.
4. Heard the learned AR. None has appeared on behalf of the Respondent. Though, the Respondents have filed cross objections in all the appeals, I proceed to decide the appeal of the revenue on the basis of material on record.
5. Learned AR for the Appellant submitted that the impugned order passed by the Commissioner (A) is not sustainable in law as the same has been passed contrary to the Board instruction 275/34/2006 CS 8a dated 18.02.2010. He also submitted that as per Board instructions and the amendment brought in the Finance Act, 2001 to the section 35A (3) which states that the Commissioner (A) shall, after making such further enquiry, as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against.
6. Learned AR further submitted that the Commissioner (A) does not have the power of remand and he has all the power to modify the Order-in-Original. On the other hand, the respondent has filed the cross objection wherein the respondent has submitted that vide the Order-in-Appeal the First Appellate Authority has specifically directed the original authority to grant consequential benefit of the rejected services to the respondent subject to the submission of the CA certificate. It has also been submitted that this direction given to the original authority would not tantamount to remanding the case for fresh adjudication as the Order-in-Appeal has clearly set aside the Order-in-Original passed by the original authority. Further, the assessee has also submitted that under section 85(4) of the Finance Act, 1994, the Commissioner (A) can pass such order as he thinks fit and such order may include an order demanding the service tax, interest or penalty. It has also been submitted that the power under section 85(4) of the Finance Act regarding passing of the order by the Commissioner (A) are much wider under the Finance Act when compared to excise Act and there is no restriction under the Act with regard to remand the case back to the lower authority. Further, respondent has also relied on the following decisions:
6.1 Commissioner of Service Tax v World Vision; 2010 (20) STR 49 CESTAT Delhi.
6.2 Honble Supreme Court in the case of MIL India Limited; 2007 (210) ELT 188 (Supreme Court).
6.3 Bacha Motors (P) Ltd. v Commissioner of Service Tax; 2010 (20) STR 575 (CESTAT Ahmedabad).
6.4 Commissioner of Central Excise v National Insurance Co. Ltd; 2011 TIOL 850 (CESTAT Madras).
7. After considering the submission of the learned AR and perusal of the cross objections, I am of the considered view by considering various decisions relied upon by the Assessee which has been clearly held that the Commissioner (A) has the power of remand under section 985(4) of the Finance Act 94.
8. Therefore, by following the ratio of the said decisions cited supra, I am of the view that there is no infirmity in the impugned order passed by the Commissioner (A) and therefore I uphold the impugned order by dismissing all the four appeals of the revenue.
9. Cross objections are accordingly disposed of.
(Operative portion of the Order was pronounced in Open Court on 19/09/2017) S.S. GARG JUDICIAL MEMBER RB 5