The CESTAT New Delhi in the case of P&P Overseas held that the realization of export sale proceeds within a definite time-frame is not a pre-condition for claiming refund of unutilized Cenvat credit under Cenvat Credit Rules , 2004 .
The appellant is an agent of Western Union on whose behalf appellant is disbursing money to the persons directed by Western Union who is located outside India. Revenue is of the view that as the service has been performed in India therefore, the service is received by Western Union in India.
Tribunal held that the service provided by appellant was not in relation to agriculture. Further appellant’s claim that service provided by it are eligible for exemption under notification no. 17/2005-ST, dated 07.06.2005
In view of the retrospective amendment introduced by Finance Act, 2010, the appellant were entitled to reverse the proportionate cenvat credit attributable to the quantum of input services used in or in relation to manufacture of exempted final product and by foregoing this credit
In the entirety of the show cause notice there is not a single assertion proposing to levy and collect service tax on the basis of any specified taxable services allegedly rendered by the appellant except the several alternative taxable services speculated to have been provided.
Providing of first-aid facilities to the workers, whether in the factory or in mines is the requirement of the Factories Act, 1948 and also the Mines Act, 1952 and if a manufacturer wants to carry on manufacturing activities, he has to comply with the provisions of the Factories Act and the Mines Act.
In the case of Oswal Petrochemicals Ltd. (supra), the Hon’ble Supreme Court has categorically held that the statute does not provide any remedy by way of review. There are other decisions of the Hon’ble Supreme Court to the effect that in the absence of specific statutory provision. Tribunal cannot exercise review powers and only rectification of mistake can be made when such mistake is apparent on the face of the record which must be an obvious mistake and not something which has to be established by a long drawn process of reasoning or where two opinions are possible.
It was opined in those orders that insofar as supplies of material are concerned, such materials shall not be liable to service tax because Finance Act, 1994 is not a Commodity Taxation Law. Contract covering taxable service have been directed to be taxed.
Following the earlier order to reduce the litigation at the grass root level first appellate order is set aside and we send the matter back to ld. Appellate Authority to re-examine the issue without insisting on pre-deposits by him. In the result, both stay application and appeal are disposed remanding the appeals to the ld. Commissioner (Appeals) to decide the same in accordance with law.
Revenue agrees to grant an opportunity to the appellant to reduce the dispute at the grass root level. In view of the limited opportunity of rebuttals as above pleaded the matter is remanded to the learned Adjudicating Authority to re-examine the issue of input credit admissibility as stated above including the documents referred to in Para 5.2 of the first appellate order granting fair opportunity of defence to the appellant.
