Custom, Excise & Service Tax Tribunal
M/S Dell International Services India ... vs The Commissioner Of Central Excise on 3 May, 2013
THE CUSTOMS EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
SOUTH ZONAL BENCH, WTC BUILDING, FKCCI COMPLEX,
K.G. ROAD, BANGALORE
Date of hearing: 3.05.2013
Date of decision: 3.05.2013
Application No: ST/St/ 1591-1593/2012,
Appeal No: ST/2183-2185/2012
(Arising out of order-in-appeal No. JMJ/47/2012 dated 07.05.2012 passed by the Commissioner of Central Excise & Service Tax (Appeals), Bangalore)
For approval and signature
Honble Mr. P.G. Chacko, Member (Judicial)
Honble Mr. B.S.V. Murthy, 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?
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules 1982 for publication in any authoritative report or not?
3.
Whether Their Lordships wish to see the fair copy of the Order
4.
Whether Order is to be circulated to the Departmental authorities
M/s Dell International Services India Pvt. Ltd. ....Appellant
Vs.
The Commissioner of Central Excise
Bangalore Respondent
Present for the Assessee : Mr. Harish Bindumadhavan., Adv Present for the Revenue: Mr. Ganesh Haavanur, A.R. Coram:
Honble Mr. P.G. Chacko, Member (Judicial) Honble Mr. B.S.V. Murthy, Member(Technical) ORDER No______________________ (Per P.G. Chacko) Appeal No. ST/2184/2012 and the connected stay application do not figure in the cause list and the same have been called for as they arise out of the same impugned order.
2. These refund claims were filed under Notification No. 5/06 CE (NT) dated 14.3.2006 read with Rule 5 of the CENVAT Credit Rules 2004. The original authority partially granted refund in view of nexus found between certain input services and output services and rejected the rest of the claim in the absence of such nexus and on other grounds. Aggrieved by the adverse part of the decision of the Assistant Commissioner, the party preferred appeals to the Commissioner (Appeals) and the latter rejected those appeals. The appellate authority proceeded on the premise that the party had claimed rebate in terms of Notification No. 12/2005-ST dated 19.4.2005 whereas their claim was one of refund in terms of Notification No. 05/06 CE (NT) ibid read with Rule 5 of the CENVAT Credit Rules 2004. Though the original authority had dealt with the refund claims by treating the claims under Notification No. 5/06-CE ibid, the appellate authority upheld the orders of the lower authority. In other words, the appellate authority appears to have been in a confused mind while dealing with the subject refund claims. In the impugned order, the learned Commissioner(Appeals) inter alia stated thus:.I hold that the adjudicating authority may also take a lenient view while sanctioning refund in case of procedural lapses when the details of the same are produced at their end. We are at a loss to understand as to for what purpose this statement was incorporated in the impugned order by the learned Commissioner (Appeals) while upholding the orders-in-original.
3. Obviously, the impugned order has to be set aside and we do so. These appeals are allowed by way of remand with a request to the Commissioner (Appeals) to dispose of the partys appeals against the orders-in-original on merits in accordance with law and having regard to the fact that what was claimed by the party was refund in terms of Notification No. 5/06-CE(NT) ibid read with Rule 5 of the CENVAT Credit Rules 2004.
We would also like to state that the substantive issue (whether the claimant succeeds in establishing the necessary nexus between input services and output services exported by them so as to be entitled to refund of the unutilized CENVAT Credit taken on the input services) has to be examined on merits by the appellate authority and refund, if any, has to be quantified in accordance with the procedure laid down in Boards Circular No. 120/01/2010ST dated 19/1/2010 after giving the party a reasonable opportunity of adducing evidence and of being personally heard. Needless to say that there will be no scope for any remand of the substantive issue by the appellate authority.
4. The stay applications also stand disposed of.
(Pronounced and dictated in open court.)
(B.S.V.MURTHY) (P.G.CHACKO)
Member(Technical) Member(Judicial)
pnr
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