Custom, Excise & Service Tax Tribunal
The Commissioner Of Service Tax vs M/S. Yokogawa Ia Technologies India ... on 4 February, 2011
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench - SMB
Court - I
Date of Hearing: 04.02.2011
Date of decision: 04.02.2011
Appeal No. ST/1878/2010
(Arising out of Order-in-Appeal No.204/2010 dated 02.06.2010 passed by the Commissioner of Central Excise (Appeals) Bangalore)
For approval and signature:
Honble Mr. P.Karthikeyan, Member (Technical)
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?
No
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(s)
Vs.
M/s. Yokogawa IA Technologies India Pvt. Ltd. Respondent(s)
Appearance Mr. Harish, JDR for the appellant Mr. R. Dakshina Murthy, Advocate for the respondent Coram:
Honble Mr. P.Karthikeyan, Member (Technical) FINAL ORDER No._______________________2011 Per P.Karthikeyan This appeal filed by the Revenue seeks to vacate the impugned order on the ground that the Commissioner (Appeals) could not have remanded the dispute for a fresh adjudication by the original authority in view of the provisions contained in Section 35A(3) of the Central Excise Act 1944 made applicable to the Finance Act 1994 (the Act). The facts of the case are that the respondents M/s. Yokogawa IA Technologies India Pvt. Ltd. (ITPL) are a STPI unit rendering IT enabled Back Office Services in the field of Insurance, Remote Data Processing etc. The assessee had taken input service credit of services such as Maintenance and Repair Service, Business Support Service, Custom House Agent Service, Renting of Immovable Property service, Telecom and Internet service, Security Agency Service etc. As the unit is engaged in export of the output service generated by it, it had sought refund of the accumulated Cenvat credit under Rule 5 of Cenvat Credit Rules, 2004 read with Notification No. 5/2006 dated 14.03.2006. The refund was claimed for an amount of Rs. 4,19,870/-. After examining the claim, the original authority held that the respondents were entitled to refund of Rs. 2,54,252/- relatable to Telecom and Internet Service, Courier Service, Renting of Immovable Property service and Maintenance and Repair Service. He held that respondents were not eligible for refund of credit relatable to Maintenance and Repair Service other than in relation to computers, Business Support Service, CHA Service, Security Agency Service and Cleaning service. This worked out Rs. 1,65,618/-. Disposing the appeal filed by the respondents against that order, vide the impugned order, the Commissioner (Appeals) held that the respondents were apparently entitled to the entire refund amount claimed by them, since the CBEC had clarified vide Circular No. 120/1/2010 dated 19.01.2010, that the services involved were essential for the services exported and directed the original authority to re-examine the refund claim.
2. Today, the Counsel appearing for the respondents submits that the original authority has already passed fresh order pursuant to the remand directions contained in the impugned order. The respondents have already received the amount originally claimed and disallowed by the original authority. He submits that the instant appeal is infructuous and may be rejected. He also submits that the only ground raised to challenge the impugned order is that the Commissioner (Appeals) does not have powers of remand.
3. I have also heard the learned JDR who reiterates the grounds raised in the appeal. Learned JDR submits that the Commissioner (Appeals) did not have powers of remand and that the impugned order is liable to be set aside.
4. On a careful consideration of the case records and submissions by both sides, I find that the Commissioner (Appeals) had not passed a speaking order on the merits of dispute. He found that the services involved were essential for the output service rendered by the respondents and directed the original authority to reconsider the refund claim in the light of the CBEC Circular No. 120/1/2010 dated 19.01.2010. Now that the original authority has passed an order in terms of remand directions, though not legal, the appeal has become infructuous. The appeal is therefore rejected.
(Pronounced & dictated in open Court)
(P. KARTHIKEYAN) MEMBER (TECHNICAL)
Iss..