Custom, Excise & Service Tax Tribunal
The Commissioner Of Service Tax vs (I) M/S. Ciber Sites India Private ... on 5 October, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH AT BANGALORE COURT - I Stay & Appeal No: ST/Stay/686, 688 & 689/2011 in ST/1123, 1125 & 1126/2011 (Arising out of Orders-in-Appeal No.75/2011 dt 1.2.2011, No.77/2011 dt.1.2.2011 & No.80/2011 dt.3.2.2011 passed by the Commissioner of Central Excise (Appeals-II), Bangalore.) Date of Hearing: 05.10.2011 Date of decision: 05.10.2011 1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3. Whether their Lordship wish to see the fair copy of the Order? Seen 4. Whether Order is to be circulated to the Departmental authorities? Yes The Commissioner of Service Tax Bangalore. Appellant Vs. (i) M/s. CIBER Sites India Private Limited (ii) AXA Business Services Pvt. Ltd. (iii) M/s. SITEL Operating Corporation India Ltd. Respondent
Appearance For the appellants : Shri R. K. Singla, JCDR for the Revenue.
For the respondents : Shri Joseph Jacob, Advocate CORAM SHRI P. G. CHACKO, HONBLE MEMBER (JUDICIAL) SHRI M. VEERAIYAN, HONBLE MEMBER (TECHNICAL) STAY ORDER Nos._______________________2011 FINAL ORDER Nos._______________________2011 Per P. G. Chacko (Oral), All these applications filed by the department in the respective appeals seek stay of operation of the impugned orders. After hearing both sides, we have found all these cases fit for summary disposal. Accordingly, after dismissing the stay applications, we take up the appeals for final disposal.
2. The respondents in these appeals had claimed refund of various amounts of unutilized CENVAT credit availed on input services which were used in, or in relation, to export of output services. These refund claims were filed under Rule 5 of the CENVAT Credit Rules, 2004. The jurisdictional Assistant Commissioners rejected the refund claims on the ground that the claimants failed to establish nexus between the input services and the output services. The parties preferred appeals to the Commissioner (Appeals) and the latter passed the orders which are impugned in the present appeals of the department. The main ground raised by the appellant is that the learned Commissioner (Appeals) remanded the substantive issue to the lower authorities inspite of the fact that he did not have power of remand. In this connection, the appellant relies on the Honble Supreme Courts judgment in the case of MIL India Ltd. Vs. CCE, Noida - 2007 (210) ELT 188 (SC) wherein the apex court had held that, with effect from 11.5.2011 (the date on which the Finance Act, 2011 came into force)., the Commissioner of Central Excise (Appeals) did not have power of remand under Section 35A of the Central Excise Act. Learned JCDR has reiterated the appellants contention and has prayed for setting aside the orders passed by the learned Commissioner (Appeals) without jurisdiction.
3. We have heard the learned counsel / consultant for the respondents as well. They have argued in justification of the appellate Commissioners orders.
4. Both sides have pointed out that this Bench had occasion to deal with similar cases. A copy of one of the Final Orders passed by this Bench has also been made available and the same is Final Order No.597 to 599/2011 dated 8.9.2011. Paragraphs 7, 8 and 9 of the said Final Order are reproduced below:
7. We have given careful consideration to the rival submissions and arguments. Obviously, none of the respondents is aggrieved by any of the impugned orders. In the first category of cases, we have found a consensus to the effect that the Commissioner (Appeals) has allowed refund in principle and the lower authority is required to re-quantify the refund on the basis of Chartered Accountants certificates to be produced by the claimants. The appellant (Revenue) wants this re-quantification also to be done by the Commissioner (Appeals). On the other hand, the respondents, in this category, are not opposed to this re-quantification being done by the original authority. Both sides agree that this re-quantification of refund has to be done in terms of Boards Circular dated 19.1.2010 which was not available when the Orders-in-Original were passed. Again, both sides agree that we have the power of remand. In this scenario, it is our considered view that, without having to examine the much-debated question whether Commissioner of Service Tax (Appeals) has power to remand or not, we can send all the matters in this category to the original authority for re-quantification of refund amounts on the basis of Chartered Accountants certificates to be produced by the claimants, for which, of course, a reasonable opportunity needs to be given to them by the original authority.
8. As regards appeal No.ST/2371/2010 and Appeal No.ST/2380/2010, which are directed against orders of the Commissioner (Appeals) directing the lower authority to examine the question of nexus, we find that the orders of the learned Commissioner (Appeals) are, essentially, remand orders. As rightly contended by the learned JCDR, the Commissioner of Service Tax (Appeals) is not empowered to make an order of remand under sub-section (5) of 85 of the Finance Act, 1994 as held by the Tribunal in the case of Orient Crafts Ltd. (supra). No overriding, binding decision to the contra has been placed before us. Therefore we are constrained to set aside the relevant orders of the Commissioner (Appeals), which are under challenge in the aforesaid two appeals of the Revenue. However, we find that the reason found by the Commissioner (Appeals) for directing the lower authority to re-examine the issue of nexus between the output services and the services claimed to be input services cannot be faulted. We, having the power of remand, would therefore remand this issue to the original authority for fresh decision and, depending on such decision, re-quantification of refund. The case involving rebate of tax is also akin to these cases and hence the same also will be required to be re-quantified by the original authority after granting the party a reasonable opportunity of producing Chartered Accountants certificate.
9. In the result, all these appeals are disposed of with a direction to the jurisdictional original authorities to dispose of the refund/rebate claims in terms of this order after giving the claimants a reasonable opportunity of adducing evidence (Chartered Accountants certificates) and also of being personally heard. The stay applications also stand disposed of.
5. The facts of this case resemble the facts considered in Para 8 of the above Final Order and, therefore, we think, we must follow that view. Accordingly, we hold that the impugned orders were passed without jurisdiction and hence require to be set aside. We further hold that, nevertheless, the reason recorded by the learned Commissioner (Appeals) for sending the matters to the original authority is valid. In this scenario, we remand all these cases to the original authorities concerned for fresh decision in the light of the Boards Circular dated 19.1.2010. The authorities shall give the parties a reasonable opportunity of producing Chartered Accountants certificates in terms of the said circular and also of being personally heard. It is further made clear that if, in the earlier round, the original authority granted any partial benefit to any of the parties, such grant is final.
(Pronounced and dictated in open Court) (M. VEERAIYAN) Member (Technical) (P. G. CHACKO) Member (Judicial) rv ??
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