Custom, Excise & Service Tax Tribunal
Deloitte Support Services India Pvt Ltd vs Commissioner Of Customs ,Central ... on 11 September, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 21707 / 2014 Application(s) Involved: ST/Stay/20654/2014 in ST/20655/2014-DB Appeal(s) Involved: ST/20655/2014-DB [Arising out of 181-2013 dated 29/10/2013 passed by Commissioner of Central Excise and Service Tax , BANGALORE-II( Appeal) ] Deloitte Support Services India Pvt Ltd Plot #14 & 15, Deloitte Drive, Road No.2, Hitech City Layout, Madhapur, HYDERABAD - 500081 AP Appellant(s) Versus Commissioner of Customs ,Central Excise and Service Tax Hyderabad-iv POSNETT BHAWAN, TILAK ROAD, RAMKOTI, HYDERABAD, - 500001 ANDHRA PRADESH Respondent(s)
Appearance:
Shri S. Thirumalai and Shri Harish Bindumadhavan, Advocates For the appellant Shri Ganesh Haavanur, Addl. Commissioner(AR) For the respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER Date of Hearing: 11/09/2014 Date of Decision: 11/09/2014 Order Per : B.S.V.MURTHY Brief facts of the case are that the appellant is engaged in providing business auxiliary service, management consultancy service and business support service to the receivers abroad according to the appellants. They claimed refund of Rs.2,99,82,446/- for the period from April 2012 to June 2012 under Rule 5 of CENVAT Credit Rules 2004 read with Notification No.27/2012-CE(NT) dt. 18/06/2012. The refund was claimed on various input services on which they had availed CENVAT credit. The refund claim was rejected by the original adjudicating authority and on an appeal filed by the appellants, in the impugned order, the Commissioner has directed the original adjudicating authority to reconsider certain issues. The observations of the Commissioner are as under:-
a. That the lower authority has not given proper findings with regard to classification. On deciding the classification of output services then comes the eligibility of input as CENVAT credit or otherwise will come into picture. Thus the order passed by the lower authority suffers from infirmity.
b. That the input service credit of Rs.32,20,931/- availed by the appellants on the input invoices which are not addressed in the name and registered address which is not included by the appellants in this registration certificate. I hold that the appellants are not eligible to take the CENVAT Credit Rules, 2004 and also not entitled to claim the refund.
c. That with regard to other issues classification etc., I find force and reason in the contention of the appellants. Prima facie it appears that the lower authority has ignored the appellants vital submissions and the documents which the appellant considered in their favour and rejected their refund claim violating the principles of natural justice.
2. After hearing both sides and going through the records, we find that the Commissioner has taken a view that appellants are not at all eligible for input service tax credit without verifying the documents which is their grievance. Learned counsel submitted that the observation that the invoices were not in the name of the appellant-company was not correct.
3. It can be seen that the impugned order suffers from lack of clarify and there is no clear direction and as to what are the issues to be considered and what are the issues which were finalized. Under these circumstances since the matter in any case has been remanded to decide certain aspects, we consider it appropriate that the remand should be an open remand so that the original adjudicating authority will be free to consider all issues. Therefore we set aside the impugned order and direct the original adjudicating authority to consider all issues afresh in accordance with law and in accordance with precedent Tribunals decisions which are applicable to the facts of the case. Stay application also gets disposed of.
(Operative portion of the order pronounced in open court) S.K. MOHANTY JUDICIAL MEMBER B.S.V.MURTHY TECHNICAL MEMBER Raja.
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