The terms and conditions of the relevant Agreements show that the appellant was, in fact, using their infrastructure, staff and expertise to market products of the Banks. In both the Agreements, the appellant was referred to as Direct Sales Association/Agent.
The order of the Commissioner (Appeals) is not a remand order and he has clearly held that the refund was available in respect of all services except ‘Air Travel Agent service’. Therefore, I do not find any merit in the submission that the Commissioner’s (Appeals) order is a remand order. In view of the above, the grounds raised by the department challenging the order of the Commissioner (Appeals) are not valid and the decision of the Hon’ble Supreme Court in the case of MIL India Ltd. (supra) does not applicable to the facts of the present case.
It is not in dispute that every stage of conversion of thicker to thinner wire is a manufacturing activity. If that be so, all the units of the company are undertaking a manufacturing activity. Admittedly, all the units are separately registered with the Department. Therefore, all of them are registered manufacturers of Tungsten and Molybdenum wires. Each unit, therefore, has to maintain the relevant statutory records including CENVAT credit accounts.
It is not in dispute that the Bangalore office of the company was a registered input service distributor and it distributed input services under cover of valid invoices to the various manufacturing units, eight in number, which were engaged in the manufacture of pharmaceutical formulations (dutiable final products).
Assessee is a 100% EOU and the disputed service tax related to import of services from foreign based commission agent. The assessee was required to pay the tax as a deemed service provider in terms of Section 66A of the Finance Act. Since the services were clearly input services for the appellant, the assessee was eligible for credit of service tax if the same had been paid by them.
The relevant show-cause notices were issued far beyond the normal period of limitation prescribed under Section 11A(i) of the Central Excise Act, without invoking the extended period of limitation. The operative part of one of these show-cause notices has been reproduced hereinbefore. The other show-cause notice is no different.
It is the oft-repeated submission of the counsel that the COD applications are liable to be allowed on the sole ground of pendency of their writ petition before the Hon’ble High Court. No judicial authority has been cited before us in support of the plea. We are of the view that the pendency of the writ petition filed by the appellants who were conscious of the statutory remedy cannot per se constitute a valid ground for condonation of the deliberate delay of over seven years. The appellants have not stated any other valid reason.
Having found a good case for the appellant on the question whether the order-in-original was issued and dispatched in accordance with the relevant provision of law, we have to remand this case to the learned Commissioner (Appeals) with a request to consider the assessee’s appeal filed against the order-in-original to have been filed within time and then to proceed to dispose it of on merits in accordance with law and the principles of natural justice. Accordingly, we set aside the impugned order and allow this appeal by way of remand for the aforesaid purpose. The stay application also stands disposed of.
Whatever was submitted to the department was rebate claim under Notification No.21/2004 after the refund claim was rejected. The rebate claim has been correctly rejected on the ground that the procedure as set out under Notification No.21/2004 has not been followed.
The modus operandi of the appellants, which we have briefly stated herein before, is crystal clear. They were not purchasing and selling immovable properties. They were only holding ‘General Power of Attorney’ of the property owners and, in that capacity, selling the property to M/s Sahara India .
